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2003 DIGILAW 26 (CAL)

AMAL KUMAR SIL v. BANKU BEHARI DE CHOWDHURY

2003-01-22

SUBHRO KAMAL MUKHERJEE

body2003
S. K. MUKHERJEE, J. ( 1 ) THIS is an application under Article 227 of the Constitution of India read with section 29b (9) of the West Bengal Premises Tenancy Act, 1956 challenging an order dated June 29, 1990 passed by the Rent Controller-cum-Sub Divisional Officer, Kalna in H. R. Case No. 8 of 1988. ( 2 ) THE opposite party, Banku Behari De Chowdhury, filed a petition under section 29b of the West Bengal Premises Tenancy Act, 1956 for eviction of a premises tenant on the ground of reasonable requirement. It was contended in the said application that the said opposite party along with his elder brother and the unmarried sister, Shrimati Chabi De Chowdhury, were the joint owners of the tenanted premises and the defendant was a tenant in respect of the said premises at a monthly rental of Rs. 47/- (Rupees forty seven) only payable according to English calendar. It was contended that the said opposite party was a medical officer working with South Eastern Railway and he was posted at Kharagpur at the material point of time. His employer allotted him accommodation at Kharagpur, but he has been asked to vacate his quarter on October 1, 1989 when he was due to retire from service. The opposite party and the members of his family were not in possession of any reasonable suitable accommodation other than the house-in-question and he required the tenanted premises for his own use and occupation. ( 3 ) THE house in question is situated at Dangapara Mahalla within ward No. 11 of Kalna Municipality. ( 4 ) THE tenant contested the said proceeding by filing his written objection, supported by an affidavit, contending, inter alia, that the landlord was not a Government employee as envisaged in section 29b of the said Act and as such the said proceeding at the instance of the opposite party was not maintainable. ( 5 ) THE unmarried sister of the opposite party, Shrimati Chabi De Chowdhury, filed an affidavit in connection with the said case and it was contended by her that by an oral amicable partition the tenanted premises under occupation of the petitioner has been allotted exclusively to the opposite party to enable him to open and run his dispensary as a dental surgeon after retirement from railway service. ( 6 ) BY order dated June 29, 1990 the Rent Controller held that the opposite party was a railway employee and as such he was a Government employee within the meaning of section 29b of the said Act and that he required the suit premises bona fide. In coming to such conclusion the Rent Controller relied upon the certificate issued by the Divisional Superintendent of the South Eastern Railway, which has been filed by the opposite party in the said proceeding. Accordingly, the application filed by the opposite party was allowed and an order of eviction was passed against the petitioner. ( 7 ) MR. Subrata Ghosh, learned advocate, appearing for the petitioner, argued that the application under section 29b of the said Act at the instance of the opposite party was not maintainable as he was not a Government employee within the meaning of said section 29b of the said Act. Mr. Ghosh, further, contended that the conditions to satisfy the tests to apply under section 29b of the said Act are absent in this case and as such the Rent Controller acted illegally and with material irregularity in passing an order of eviction in favour of the opposite party. ( 8 ) IN spite of service of notice, none appears on behalf of the opposite party at the final hearing of this application. ( 9 ) I am unable to accept the contentions that the landlord was not a Government employee and as such he was not entitled to maintain an application under section 29b of the said Act. The landlord was a Medical Officer and was working with the South Eastern Railway and was posted at Kharagpur. ( 10 ) UNDER Rule 3 of the Central Civil Services Classification Control and Appeal Rules, 1965 it provides that the said Rules shall apply to every Government servant including every civilian Government servant in the defence services, but those Rules shall not apply to any railway servant, as defined in Rule 102 of Volume 1 of the Indian Railways Establishment Code. ( 11 ) THE Judicial Committee in the case of Province of Bombay v. Hormusji Manekji, reported in 74 IA 103 observed ?it is a familiar principle of statutory construction that where you find in the same section express exceptions from the operative part of the section, it may be assumed, unless it otherwise appears from the language employed, that these exceptions were necessary, as otherwise the subject-matter of the exceptions would have come within the operative provisions of the section. ? ( 12 ) THE makers of the said Rules of 1965 knew that the railway servants were Government servants, but they decided to exclude them from the application of the said Rules and, therefore, it was necessary for the makers of the said Rule to insert an exception clause to exclude the railway servants from the operation of those Rules. ( 13 ) THE Apex Court in the case of The State of Ajmer (now Rajasthan) v. Shivji Lal, reported in 1959 supp. (2) SCR 739 observed as under: ?this very question came up for consideration in this Court in G. A. Monterio v. The State of Ajmer (1956) SCR 682 and it was laid down that the true test in order to determine whether a person is an officer of the Government, is: (1) whether he is in the service or pay of the Government and (2) whether he is entrusted with the performance of any public duty. It is not disputed in this case that the accused was in the service of Government and was being paid by Government. It cannot also, in our opinion, be doubted that he was entrusted with the performance of a public duty inasmuch as he was a teacher in a school maintained by Government and it was part of his public duty to teach boys. ? ( 14 ) IT is pertinent to not here that the respondent in the said case was prosecuted under section 161 of the Indian Penal Code read with section 5 (2) of the Prevention of the Corruption Act, 1947 and the learned Special Judge convicted him. He preferred an appeal before the learned Judicial Commissioner of Ajmer. The appeal was allowed on the ground that the respondent being a teacher in the railway school was not a public servant. In the aforesaid background, the Apex Court has made the aforesaid observations. He preferred an appeal before the learned Judicial Commissioner of Ajmer. The appeal was allowed on the ground that the respondent being a teacher in the railway school was not a public servant. In the aforesaid background, the Apex Court has made the aforesaid observations. name analysis ( 15 ) ONE Ranjeet Mal was an employee of the Northern Railway. He was removed from service. He appealed against the order of removal, but the General Manager of the said Railway rejected his appeal. He approached the High Court of Rajasthan under Article 226 of the Constitution of India, but learned single Judge of the said High Court dismissed the application on the ground that the Union of India was not impleaded. The Division Bench, also, affirmed the decision of the learned single Judge and held that Union of India was a necessary party. Being aggrieved the employee moved the Apex Court. The Apex Court in the case of Ranjeet Mal v. General Manager, Norther Railway, New Delhi and Anr. , reported in AIR 1977 SC 1701 observed as under: ?it cannot be disputed that the appellant was a servant of the Union. It is equally indisputable that any order of removal is removal from service of the Union. The appellant challenged that order. Any order which can be passed by any Court would have to be enforced against the Union. The General Manager or any other Authority acting in the Railway Administration is as much a servant of the Union as the appellant was in the present case. The Union of India represents the Railway Administration. The Union carries administration through different servants. These servants all represent the Union in regard to activities whether in the matter of appointment or in the matter of removal. It cannot be denied that any order which will be passed on an application under Article 226 which will have the effect of setting aside the removal will fasten liability on the Union of India, not on any servant of the Union. Therefore, from all points of view, the Union of India was rightly held by the High Court to be a necessary party. The petition was rightly rejected by the High Court. ? Therefore, from all points of view, the Union of India was rightly held by the High Court to be a necessary party. The petition was rightly rejected by the High Court. ? ( 16 ) ADMITTEDLY, the landlord was in employment of the South Eastern Railway as a dental surgeon and as such he was an employee of the Union of India and, therefore, was entitled to invoke section 29b of the West Bengal Premises Tenancy Act, 1956 as a Government employee. ( 17 ) HOWEVER, I am unable to maintain the order of eviction passed by the Rent Controller for the following reasons: ( 18 ) UNDER section 29b of the West Bengal Premises Tenancy Act, 1956 special procedures for disposal of applications for eviction on the ground of bona fide requirement are provided. The said section 29b of the said Act makes a distinction as regards applicability of chapter VIA of the said Act regarding summary trial of certain applications with regard to two categories of landlords for whose benefits the said chapter was inserted in the said Act. One set of landlord is 'government employee' and the other set of landlord is 'member of Naval, Military or Air Force of the Union of India'. ( 19 ) IN so far as the landlords, who are Government employees, other than the members of Naval, Military or Air Force of the Union of India, following tests are required to be satisfied for maintaining an application under section 29b of the said Act: (a) he must be a Government employee; (b) he has been occupying a Government premises allotted to him by his employer for his residential purpose; (c) by a general or special order his employee asks him to vacate residential accommodation allotted to him by his employer 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; (d) he reasonably requires the disputed premises for his own use and occupation and that he has no reasonably suitable accommodation. ( 20 ) IN order to maintain an application the landlord must fulfill all the said elements prescribed by the said section. ( 20 ) IN order to maintain an application the landlord must fulfill all the said elements prescribed by the said section. It appears from the petition filed by the opposite party that he was allotted a quarter by the South Eastern Railway at Kharagpur, where he was working as a dental surgeon and that he has been asked to vacate his quarter on October 1, 1999 when he was scheduled to retire. The tenanted premises is situated at Dangapara Mahalla within ward No. 11 of Kalna Municipality and as such it cannot be stated by any stretch of imagination that the tenanted premises at Kalna was situated at or near the place where the landlord was posted for the time being. Kharagpur is a sub-divisional town in the District of Midnapore while Kalna is a sub-divisional town in the District of Burdwan. ( 21 ) IT appears from the statement made in the said petition that as the landlord was schedule to retire from the railway employment, his employer asked him to vacate his quarter and not that he was asked to vacate the quarter as he owned a residential accommodation at or near the place where he was posted for the time being. In order to maintain an application under section 29b of the said Act all the requirements of the said section has to be compelled with. ( 22 ) ACCORDINGLY, this application is allowed. The order passed by the Rent Controller in case No. 8 of 1998 dated June 29, 1990 is set aside and the application under section 29b of the said Act filed by the opposite party is dismissed. There will be no order as to costs. Xerox certified copy of this order, if applied for, is to be supplied expeditiously. Application allowed