Kamala Bose v. Dipali Saha — 1993 DIGILAW 523 (CAL)

JUDGMENT The instant application under Article 227 of the Constitution of India has been filed by the petitioner tenants against the Order dated 4.8.93 passed by the Additional House Rent Controller, Serampore in H.R.C. Case No.92 of 1993 thereby allowing the application of the owner landlord O.P. No.1 under Section 29B of the West Bengal Premises Tenancy Act (hereinafter referred to as the Act). The aforesaid case was brought by the present O.P. No.1 against the present petitioners 1 and 2 and O.P. No.2 alleging them to be the tenants in respect of the disputed premises. By the impugned order the Learned Additional House Rent Controller allowed the case and directed the present petitioner No.1 to vacate the suit premises by 20.8.93 & to be report compliance by 21.8.93. It has been urged before me by Shri B. Bhattacharji the Ld. Advocate appearing for the petitioner that the impugned order is patently illegal and violating of the principles of natural justice and that it has been passed without giving any opportunity of hearing to the petitioners as required under the Law. It has also been submitted by Shri Bhattacharji that the entire proceeding is vitiated by flagrant error in procedure, lack of jurisdiction resulting in manifest injustice. It has been submitted by Shri Bhattacharji that at the time of filing of the instant case under Section 29B of the Act the landlord O.P. No. 1 did not fulfil the conditions as prescribed under the aforesaid Section so as to entitle her to get the relief thereunder. In order to appreciate the submissions of Shri Bhattacharji it would be helpful to quote the relevant provisions of Section 29B of the Act which runs 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 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 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, .............................................................................. for the recovery of possession of any premises on the ground specified in clause (ff) of sub-Section (1) of Section 13 but such application shall be dealt with by the Controller in accordance with the procedure specified in this section". 2. In her petition before the Rent Controller under Section 29B of the Act the landlord O.P. No. 1 alleged herself to be the owner of the disputed premises in respect of which the present petitioners and O.P. No.2 were her tenants. Undisputedly the O.P. No. 1 is a Government employee and was in occupation of a residential premises allotted by the Government in a rental Housing Estate, Mahesh, District Hooghly and also was the owner of the house at 54-N.S. Road, Serampore. In order to attract of the provisions of Section 29B the landlord at the time of filing of his case must be a Government employee and he while 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 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. It has been argued by the Ld. Advocate appearing for the petitioners that at the time of filing of the case under Sec.29 B the O.P. No.1 had already vacated the Government flat and that as such her petition was liable to be dismissed inasmuch as she did not fulfil the second condition. In other words Shri Bhattacharji has submitted that in order to attract the provisions of Section 29B of the Act the landlord petitioner at the time of filing of the case before the Rent Controller must be a Government servant and must be in occupation of the residential premises allotted by the Government. He has referred to a Division Bench decision of the Calcutta High Court reported in (1) 1984(2) Calcutta High Court Notes at page 57. He has referred to a Division Bench decision of the Calcutta High Court reported in (1) 1984(2) Calcutta High Court Notes at page 57. I have gone through the said reported decision but it has nowhere been held there that in order to get the relief under Section 29B of the Act, the landlord petitioner must be in occupation of the residential premises allotted by the Government at the time of his filing the application. What has been held there is as follows :– "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 not have been asked to vacate the Government premises and he would have been allowed to occupy and enjoy the same." 3. He has also referred to a decision of the Calcutta High Court reported in (2) AIR 1986 at page 273. This reported case also does not appear to support the contention of Shri Bhattacharji. It has been held there as follows :– "In respect of a landlord who is a Government employee Section 29 B prescribed two conditions : He should be in occupation of residential premises allotted to him by his employer. Secondly, that he is required to vacate it on the ground that he owns a residential accommodation in his place of posting. The first condition refers to 'residential premises.' The second condition is also in relation to a residential accommodation." 4. The Learned Advocate appearing for the O. P. No. 1 has referred to a Division Bench decision of the (3) Calcutta High Court Notes 1987(1) at page 185, the legal position in this regard has been clearly pointed out in the aforesaid decision which may be quoted below :--- "Section 29B of the West Bengal Premises Tenancy Act, 1956 has provided for a special procedure for disposal of application for eviction on the ground of reasonable requirement made by the class of landlords mentioned in the said section. The said section creates a special forum for entertaining applications. The civil courts cannot entertain the applications under Section 293 of the said Act and the same are to be dealt with by the Rent Controller. Secondly, the said Section 29B ousts civil court's jurisdiction to entertain application for eviction on the ground of reasonable requirement only by a certain class of landlords. It is well settled principle of law that exclusion of jurisdiction of civil court is not to be readily inferred and such exclusion must be either explicity expressed or clearly implied. A provision of law which ousts the jurisdiction of civil court ought to be strictly construed. Section 29B of the Act has very categorically specified the particular class or applications for eviction on the ground of bona fide requirement shall be dealt with by the Rent Controller and not by the civil court. In order to apply under Section 29B of the West Bengal Premises Tenancy Act, a landlord ought to satisfy the following conditions : (a) he is a Government employee, (b) he had been occupying a Government premises as his residence, (c) By a general or special order the Government has asked him to vacate his said residential accommodation on the ground that he owns a residential accommodation either in his own name or in the name of his wife or dependent child." 5. Section 29B, in my view, does not require the petitioner at the time of filing his application to be in continued occupation of the residential premises allotted to him by his employer after he has been directed to vacate such residential accommodation or in default to incur certain obligations on the ground that he owns a residential accommodation directly or indirectly at or near the place of posting. The impugned notice is to be found at Annexure–'N' at page 48 of the instant application. This notice is dated 15.2.93 addressed to the O. P. No. 1 at her address in the rental Housing Estate, Mahesh, directing her to vacate the said premises by 28.2.93 failing which the Government to take possession of the said flat by applying police force. This notice has a reference to the S.D.O's letter No. 97 con. dated 28.1.93. A copy of the said letter has been furnished in the affidavit in reply. This notice has a reference to the S.D.O's letter No. 97 con. dated 28.1.93. A copy of the said letter has been furnished in the affidavit in reply. In the said confidential letter the S. D. O., Hooghly informed the Assistant Engineer Housing Construction that the O. P. No. 1 owned a house at 54 N. S. Road, Serampore. It would be unreasonably to conclude that in order to entitle herself to the reliefs under Section 29B the O. P. No.1 should have continued to occupy the residential premises allotted to her by the Government even against the threat of application of police force till she filed her application under Section 29B on 5.5.93 before the Rent Controller. Shri S. P. Roychowdhury appearing for the O. P. No. 1 has referred to a decision of the Supreme Court reported in AIR 1978 which is a case under the Delhi Rent Control Act. In the said case the provisions of Sections 14A and 25B of the Delhi Rent Control Act were interpreted. It has been decided there when the right to recover possession under Section 14A of the Delhi Rent Control Act will accrue to a landlord. It has been held there that the cause of action occrues to the landlord on the date when he served with the general or special order requiring him to vacate or incur obligations. Shri Roychowdhury has also referred to a decision of the Supreme Court reported in (4) AIR 1982 at page 25 which however, in my view has no application to the present question in issue. After hearing the Learned Advocates appearing for the parties and after going through the relevants provisions of Section 29B and following the principles laid down by the Division Bench of this High Court reported in 1987(1) CHN at page 185. I hold that there is no legal requirement under Section 29B of the Act that the landlord must be in occupation of the residential premises allotted to him by his employer at the time of his filing an application under Section 29B of the Act in order to entitle him to the reliefs claimed thereunder or for that matter to entitle the Rent Controller to exercise jurisdiction on an application under Section 29B of the Act. Admittedly, the O.P. No. 1 was not in possession of the Government accommodation when she filed this application under Section 29B of the Act. But it is also admitted by both the parties that at the time of getting the notice dated 15.2.93 as per Annexure-'N' of this application at page 48 the O.P. No. 1 was in possession of the Government accommodation where from she was directed to be evicted by application of police force in case she did not vacate the same by 28.2.93. So in my view the petition filed under Section 29B of the Act by the O.P. No. 1 before the Additional House Rent Controller did not suffer from any legal infirmity so as to ousts the jurisdiction of Additional House Rent Controller to entertain this application Coming to other points, it has been submitted by Shri Bhattacharji on behalf of the petitioners that the Additional House Rent Controller allowed the application under Section 29B of the Act without giving them the leave to contest the application awl without allowing the petitioners any opportunity to adduce evidence. I have gone through the record of the Lower Court proceedings which shows that the Ld. Additional House Rent Controller before final adjudication of the matter did not comply with the provisions of Sections 29B, (3), (b), (4), (5) and (6) of the Act By the Order dated 5.5.93 the Additional House Rent Controller directed issue of notice upon the O.Ps. for filing objection if any by or before 24.6.93. By his order dated 26.6.93 the Ld. Additional House Rent Controller noted that the present petitioner No. l(O.P. No. 1) in the petition under, Section 29B had filed an application praying for leave to contest the case along with the written objection supported by an affidavit. No order appears to have been passed in this regard by the Ld. Additional House Rent Controller. There is no note about the service of summons or notice upon the O. P. Nos. 2 and 3. He has recorded the postal endorsement in respect of the notice issued to the O.P. No. 3 which does not show that the notice was refused by the O .P. No 3 who is O. P. No 2 in the instant application. 2 and 3. He has recorded the postal endorsement in respect of the notice issued to the O.P. No. 3 which does not show that the notice was refused by the O .P. No 3 who is O. P. No 2 in the instant application. From the Lower Court record it appears that no order was passed by the Additional House Rent Controller directing the Landlord petitioner to take appropriate steps for service of summons upon the O.P. Nos. 2 and 3 according to Law. He has also not given the petitioner No.1 (OP. No. 1 before the Additional House Rent Controller) leave to contest the case under Section 29B. He has passed the impugned order against the provisions of law. Furthermore, it is admitted by the landlord O.P. No.1 that the tenants of the disputed premises are petitioner Nos. 1, 2 and O.P. No.2. But the Additional House Rent Controller has passed the order of eviction against only the petitioner No. 1. In this position it must be held that by following this illegal procedure and passing impugned order the Additional House Rent Controller has violated the principles of natural justice and has exercised his authority arbitrarily following an illegal procedure which has resulted in manifest injustice to the present petitioners. The impugned order cannot be allowed to stand and the case must be sent back to the Additional House Rent Controller for disposal according to the Law. The application under Afticle 227 is allowed and the impugned order is set aside. The H.R.C. Case No. 92/93 is sent back on remand directing the House Rent Controller to dispose of the same as expeditiously as possible following the legal provisions of Section 29B in the light of my observation made above The L.C.R. be sent down to the court below along with a copy of this order forthwith by a special messenger at the cost of the O.P. No.1, to be deposited within a week after the Christmas vacation. Xerox copies of this order be also given to the parties on usual undertaking.