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2000 DIGILAW 6 (CAL)

Hulisa Shaw v. Ombalika Das (Nee Sarcar)

2000-01-04

Bhaskar Bhattacharya

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Judgment Bhaskar Bhattacharya, J. : 1. This revisional application under Article 227 of the Constitution of India is at the instance of a tenant in a proceeding under section 29 (B) of the West Bengal Premises Tenancy Act ("Act") and is directed against order dated July 12, 1999 passed by the Rent Controller, Calcutta in R.C. Case No. 12 of 1995 (EVC) allowing the said case. 2. The opposite parties claiming to be daughters of a retired member of Indian Army filed the aforesaid application for eviction of the present petitioner on the ground of reasonable requirement under section 29 (B) of the Act. 3. After service of summons of the aforesaid proceeding, the present petitioner filed an application for leave to contest the said proceeding in terms of section 29 (B) (4) of the Act long after fifteen days time as mentioned therein along with an application under section 5 of the Limitation Act for condonation of delay in filing such application. 4. The Rent Controller rejected such application for condonation of delay and the present petitioner's application under Article 227 of the Constitution of India filed against such order was also ultimately rejected by this court. 5. Thereafter when the matter came back to the Rent Controller, the Rent Controller allowed such application only on the ground that the petitioner failed to secure any leave in term of section 29 (B) (4) of the Act. 6. Being dissatisfied, the tenant had come up in this application under Article 227 of the Constitution of India. 7. Mr. Roychowdhury, the learned senior advocate appearing on behalf of the petitioner had vehemently contended that the Rent Controller acted illegally and with material irregularity in allowing the application under section 29 (B) of the Act although no evidence was adduced on behalf of the opposite parties in support of such application and although the original certificate alleged to have been given by the Area Commander as mentioned in section 29 (B) of the Act was not filed. Mr. Roychowdhury contends that even if a tenant does not apply for leave in terms of section 29 (B) (4) of the Act, that does not necessarily mean that an order of eviction will follow notwithstanding the fact that the ingredients of section 29 (B) of the Act have not been proved even ex parte by the landlord. According to Mr. Roychowdhury contends that even if a tenant does not apply for leave in terms of section 29 (B) (4) of the Act, that does not necessarily mean that an order of eviction will follow notwithstanding the fact that the ingredients of section 29 (B) of the Act have not been proved even ex parte by the landlord. According to Mr. Roychowdhury even in such a case, the landlord is required to prove the case made out in the application under section 29 (B) of the Act. Mr. Roychowdhury submits that in case no leave has been taken, the position of the tenant will be that of a defendant whose defence has been struck out but that does not absolve the landlord of the necessity of proving even ex parte the case made out in the application. 8. Mr. Chatterjee, the learned advocate appearing on behalf of the landlord has on the other hand supported the order of the Rent Controller and has contended that once the petitioner failed to get leave in terms of section 29 (B) (4) of the Act, the Rent Controller is bound to pass an order of eviction as provided in the said sub-section. According to Mr. Chatterjee, the petitioner is not entitled to agitate before this court that the original certificate has not been filed or that it was not a certificate given by the Commander. According to Mr. Chatterjee all these pleas could be availed of, provided a leave was granted to the petitioner. In support of such contention Mr. Chatterjee relies upon a decision of this court in the case of Nripendra vs. Amulya reported in 86 CWN 996. Mr. Chatterjee further contends that on the ground that original certificate was not filed, a learned Single Judge of this court in the case of J.L. Bose vs. Brigadier Atindra Mohan Bhattacharya reported in AIR 1990 Cal 13 dismissed a case under section 29 (B) of the Act but the Apex Court has set aside the said decision. Mr. Chatterjee places before this court a certified copy of the said decision of the Apex Court. 9. After hearing the learned advocates for the parties and after going through the provisions contained in section 29 (B) of the Act, I am unable to accept the contention of Mr. Mr. Chatterjee places before this court a certified copy of the said decision of the Apex Court. 9. After hearing the learned advocates for the parties and after going through the provisions contained in section 29 (B) of the Act, I am unable to accept the contention of Mr. Chatterjee that once a tenant has failed to apply for leave to contest or has been refused leave on the ground of delay in making such application, the Rent Controller will pass an order of eviction in favour of a landlord as a matter of course. All that section 29 (B) (4) of the Act provide is that once a tenant fails to appear pursuant to service of summons or to obtain such leave, it should be presumed that the statements made in the application for eviction are admitted and the last sentence of the said sub-section (4) viz. "the applicant shall be entitled to an order for eviction on the ground aforesaid" should be construed to mean that the landlord will get an order of eviction provided the conditions specified in section 29 (B) of the Act are fulfilled. 10. If the contention of Mr. Chatterjee is accepted, in that event, a landlord even in the absence of necessary averment in terms of section 29(B) of the Act will get an order of eviction simply because the tenant has either not appeared or failed to apply for leave within the time prescribed. It is never the intention of the legislature to favour a landlord with an order of ejectment of a tenant although the requirements of section 29 (B) have not been complied with. 11. Therefore, in a given case, a tenant without applying for leave and without disputing the veracity of the statements made in the application-under section 29 (B) of the Act can contend that even thou h the averments made therein are true but the necessary conditions mentioned in section (B) of the Act are absent. Similarly, the Rent Controller is also under obligation to see, even in a case where no leave has been applied for, that the applicant has at least satisfied the basic requirements of the section. Similarly, the Rent Controller is also under obligation to see, even in a case where no leave has been applied for, that the applicant has at least satisfied the basic requirements of the section. The Rent Controller even in such a case is under obligation to see that the final order is not in conflict with sub-sections (2), (3), (4) and (6) of section 13 of the Act as pointed out in section 29 (B) (7) of the Act. 12. Keeping in view the aforesaid interpretation of section 29 (B) (4) of the Act, I find that even if we accept the entire averments made in the application under section 29 (B) of the Act to be true, the opposite parties have failed to satisfy the requirements of the aforesaid provisions. 13. In the application for eviction, as mentioned earlier, the opposite parties claimed to be 'owner landlord' and the daughters of a retired military officer who had retired prior to the filing of the application. 14. According to section 29 (B) of the Act, the parents or widow of a retired naval, military or air force employee or such retired employee himself can maintain an application, if any of the aforesaid categories of persons is a landlord; but in a case where the major children of such retired employee are 'landlord', the cannot maintain such application. The opposite parties could maintain such application during the service period of their father by taking shelter under the clause "who is a relation (other than a minor child or the widow) and a dependent member of the naval, military or air force of the Union of India and ordinarily resides with him." 15. Therefore, even according to the case made out by the opposite parties, the benefit of section 29 (B) of the Act is not available to them and the Rent Controller acted without jurisdiction in granting relief to the opposite parties. 16. Moreover, the xerox copy of the certificate given by the Area Commander shows that the same was issued by the officiating Chief Engineer, Project Dantak in his alleged capacity of Commanding Officer if the Unit from where the father of the opposite parties retired. 16. Moreover, the xerox copy of the certificate given by the Area Commander shows that the same was issued by the officiating Chief Engineer, Project Dantak in his alleged capacity of Commanding Officer if the Unit from where the father of the opposite parties retired. According to proviso (C) of section 29 (B) (2) of the Act, certificate should be given by the Area or Sub-area Commander within whose jurisdiction the premises are situated Therefore the application for eviction was not even accompanied by a certificate given by an appropriate authority. 17. Be that as it may, in view of my earlier findings, the application was not maintainable at the instance of the opposite parties of daughters of a retired military employee. 18. As regards the decision of P.K. Benerjee, .J (as His Lordship then was) in the case of Nripendra vs. Amulya reported in 86 CWN 996, the same is not an authority for the proposition that a Rent Controller as a matter of course will pass an order of eviction where no leave is granted under section 29 (B) (4) of the Act. It will appear from the said decision itself that His Lordship considered the question of service of notice under section 13 (6) of the Act and also the question whether a co-owner can maintain such application although no leave was granted in the said case under section 29 (B) (4) of the Act. 19. In view of the foregoing discussion I do not propose to record any finding on the question whether filling of a xerox copy of certificate is sufficient compliance of section 29 (B) (2) of the Act as the same is unnecessary. 20. In the result, the revisional application succeeds. The order impugned is set aside and the application under section 29 (B) of the Act filed by the opposite parties is dismissed as not maintainable. 21. No costs. N.M. Revisional application succeeds.