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2018 DIGILAW 654 (CAL)

Gopinath Moulick v. Subha Bhagat

2018-09-05

ARIJIT BANERJEE, JYOTIRMAY BHATTACHARYA

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JUDGMENT : Jyotirmay Bhattacharya, J. 1. This second appeal is directed against the judgment and decree dated 26th February, 2018 passed by the learned Additional District Judge, Fast Track Court-3, Barrackpore, North 24-Parganas in Title Appeal No. 31 of 2013 reversing the judgment and decree dated 28th February, 2013 passed by the learned Civil Judge (Junior Division), 3rd Court, Sealdah in Ejectment Suit No. 192 of 2004 at the instance of the defendant/appellant. 2. Let us now consider the merits of the appeal to find out as to whether any substantial question of law is involved in this second appeal for which the appeal is required to be admitted for hearing under the provision of Order XLI Rule 11 of the Code of Civil Procedure or not. 3. Here is the case where we find that the plaintiff/respondent filed a suit for eviction against the defendant/appellant on the ground of default in payment of rent and also on the ground of her reasonable requirement of the suit premises. 4. The defendant contested the said suit by filing written statement denying the material allegations made out by the plaintiff in the plaint. The parties led evidence in support of their respective contentions in the suit. 5. The learned Trial Judge after considering the pleadings of the parties and their evidence ultimately held that the plaintiff has failed to prove that the defendant is defaulter in payment of rent in respect of the suit premises. The learned Trial Judge further held that the plaintiff has also miserably failed to prove that she reasonably requires the suit premises for her own occupation and for the occupation of the members of her family. Though the learned Trial Judge held that the eviction notice under Section 6(4) of the West Bengal Premises Tenancy Act, 1997 read with Section 106 of the Transfer of Property Act which was served upon the defendant was good, valid and legal, but the learned Trial Judge refused to pass a decree for eviction as the plaintiff failed to prove the grounds of eviction as pleaded in the plaint. Thus, the suit was dismissed. 6. Being aggrieved by and dissatisfied with the said judgment and decree of the learned Trial Judge, the plaintiff preferred an appeal before the learned first Appellate Court. Thus, the suit was dismissed. 6. Being aggrieved by and dissatisfied with the said judgment and decree of the learned Trial Judge, the plaintiff preferred an appeal before the learned first Appellate Court. A question came up for consideration before the learned first Appellate Court as to the applicability of the provisions of the West Bengal Premises Tenancy Act to the tenancy of the defendant which is situated within Barrackpore Cantonment area. The learned first Appellate Court rejected the defendant's application under Order 7 Rule 11 of the Civil Procedure Code holding that the provisions of the West Bengal Premises Tenancy Act, 1997 applies to the tenancy of the defendant. The learned first Appellate Court, thus, held that the eviction suit which was filed by the plaintiff under the provision of the West Bengal Premises Tenancy Act is maintainable. The learned first Appellate Court held that the defendant is a defaulter in payment of rent for the period from April 2002 to October 2004 at the rate of Rs. 2,200/- per month. The learned first Appellate Court also held that the plaintiff has succeeded in proving that she reasonably requires the suit premises for her own use and occupation and she has no other alternative accommodation elsewhere. Holding as such the learned first Appellate Court set aside the judgment and decree of the learned Trial Judge and allowed the said appeal. Thus, a decree for eviction was passed by the learned first Appellate Court in the said appeal. The legality and/or correctness of the said judgment and decree passed by the learned first Appellate Court is under challenge in this appeal. 7. Let us now consider the merits of the instant appeal in the facts of the instant case. 8. Since the fate of this appeal depends upon the issue as to whether the West Bengal Premises Tenancy Act applies to the present tenancy of the defendant or not, let us first of all consider the said issue first before entering into the other questions involved in this appeal. 9. Sub-section (3) of Section 1 of the West Bengal Premises Tenancy Act, 1997 provides that the said Act extends to the areas included within the limits of the Kolkata Municipal Corporation and the Howrah Municipal Corporation and to the municipal areas within the meaning of the West Bengal Municipal Act, 1993 (West Ben. 9. Sub-section (3) of Section 1 of the West Bengal Premises Tenancy Act, 1997 provides that the said Act extends to the areas included within the limits of the Kolkata Municipal Corporation and the Howrah Municipal Corporation and to the municipal areas within the meaning of the West Bengal Municipal Act, 1993 (West Ben. Act XXII of 1993) : provided that the State Government may, by notification, extend this Act or any provision thereof to any other area specified in the notification, or may, by notification, exclude any area from the operation of this Act or any provision thereof. 10. The said provision, thus, makes it clear that the provisions of the West Bengal Premises Tenancy Act, 1997 apply to the tenancies within the Kolkata Municipal Corporation, Howrah Municipal Corporation and other municipalities as defined under the West Bengal Municipal Act, 1993. The said provision also provides that the provisions of the said Act or some of the provisions of the said Act may be extended to any area even beyond the Kolkata Municipal Corporation, Howrah Municipal Corporation and the other municipalities by way of notification. Here no such notification has been issued for extending the operation of the West Bengal Premises Tenancy Act to the Barrackpore Cantonment area. In this connection, we are also required to consider the provisions contained in Section 3(a) of the said Act which runs as follows:- "3. Exemption.-Nothing contained in this Act shall apply to- (a) any premises owned by- (i) the Central Government, or (ii) any State Government, or (iii) a Government undertaking or enterprise, or (iv) a statutory body which is not a local authority, or (v) a Cantonment Board constituted under the Cantonments Act, 192, 4 (2 of 1924), or (vi) a local authority." 11. The exemption provision as contained in Section 3(a) of the said Act, thus, makes it clear that the provisions of the West Bengal Tenancy Act, 1997 are not made applicable to the tenancy in respect of a premises which is admittedly owned by Cantonment Board. Of course, Section 3 of the West Bengal Premises Tenancy Act, 1997 has no application in the facts of the instant case as, admittedly the defendant's tenancy is not in respect of the premises which is held by Cantonment Board. Of course, Section 3 of the West Bengal Premises Tenancy Act, 1997 has no application in the facts of the instant case as, admittedly the defendant's tenancy is not in respect of the premises which is held by Cantonment Board. Be that as it may, in view of the decision of the Hon'ble Supreme Court in the case of Indu Bhusan Bose v. Rama Sundari Debi and another reported in AIR 1970 SC 228 , it is well settled that the State Legislature is incompetent to legislate in respect of any tenancy and/or other incidence of tenancy within Cantonment area. It was held in the said decision that Parliament alone can legislate with regard to the incidence of tenancy and/or relationship between the landlord and tenant in respect of housing accommodation situated in the Cantonment area. 12. In the context of the aforesaid decision of the Hon'ble Supreme Court and also by taking note of the fact that no notification has been issued by the State authority for extending operation of the West Bengal Premises Tenancy Act, 1997 in Barrackpore Cantonment area, we have no hesitation to hold that the West Bengal Premises Tenancy Act, 1997 has no application to the tenancy of the defendant. The tenancy of the defendant is not regulated and/or guided by the provisions contained in the West Bengal Premises Tenancy Act, 1997. Holding as such, we could have decided this appeal by declaring that the decree passed by the learned first Appellate is illegal, but we cannot do so as, here is the case where we find that the plaintiff/landlady served a combined notice under Section 6(4) of the West Bengal Premises Tenancy Act read with Section 106 of the Transfer of Property Act. Such notice dated 26th August, 2004 was served upon the defendant/tenant on 31st August, 2004 asking the tenant to vacate the suit premises and/or deliver vacant or peaceful possession thereof on the expiry of the month of October 2004. The relationship of landlady and tenant between the parties was determined by the said notice. Such notice dated 26th August, 2004 was served upon the defendant/tenant on 31st August, 2004 asking the tenant to vacate the suit premises and/or deliver vacant or peaceful possession thereof on the expiry of the month of October 2004. The relationship of landlady and tenant between the parties was determined by the said notice. Though determination of relationship of landlady and tenant between the parties is not a sine qua non for maintaining a suit for eviction under the West Bengal Premises Tenancy Act, but determination of the relationship of landlady and tenant between the parties is a sine qua non for maintaining a suit for eviction under the provision of Section 106 of the Transfer of Property Act. Section 106 of the Transfer of Property Act provides for determination of such relationship of landlady and tenant between the parties by 15 days' notice in case of residential tenancy. If we consider the legality of the said eviction notice in the light of the provision contained in Section 106 of the Transfer of Property Act, then we have no hesitation to hold that the ingredients underlying Section 106 of the Transfer of Property Act are fully satisfied in the instant case. In a suit for eviction under the Transfer of Property Act, the landlady is not required to prove any ground of eviction which is necessary in case of eviction of a tenant under the West Bengal Premises Tenancy Act where the tenants are protected against eviction in the absence of proof of any of the grounds of eviction by the landlady. 13. Having regard to the fact that the existence of relationship of landlady and tenant between the parties was duly determined by service of notice under Section 106 of the Transfer of Property Act and when both the Courts below held that such notice is good, valid and legal, this Court sitting in this jurisdiction does not find any reason to interfere with the operative part of the decree passed by the learned first Appellate Court, though we record our dissent with regard to the findings which were recorded by the learned first Appellate Court about the satisfaction of the grounds of eviction based on which the instant suit was filed by the plaintiff/landlady. 14. 14. We, thus, do not find involvement of any substantial question of law in this second appeal for which the appeal is required to be admitted for hearing under the provision of Order XLI Rule 11 of the Code of Civil Procedure. We decline to admit this appeal. The appeal, thus, stands dismissed. Since we have dismissed the appeal, no further order need be passed on the application for injunction filed in connection with this appeal. The said application being CAN 2334 of 2018 is deemed to be disposed of. Arijit Banerjee, J. - I agree.