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PETITIONER: STATE OF WEST BENGAL & ANR.

       Vs.

RESPONDENT: SARAL KUMAR SEN GUPTA & ANR.

DATE OF JUDGMENT15/04/1986

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) THAKKAR, M.P. (J)

CITATION:  1987 AIR  514            1986 SCR  (2) 515  1986 SCC  (3)  45        1986 SCALE  (1)630

ACT:      West Bengal  Government Premises  (Teanancy Regulation) Act, 1976  - S.3(2)  - Agreement  of tenancy - Stipulation - ’Premises to  be used  exclusively by the tenant and members of his family’ - Tenant ceasing to occupy premises himself - Whether liable to eviction.

HEADNOTE:      Respondent No.1  - an  employee of the State Government was allotted  on lease  a two-roomed flat. Clause (7) of the agreement of  tenancy provided  that the  premises shall  be used  exclusively  for  the  purpose  of  the  residence  of Respondent No.1  and the members of his family. At that time the family  of the Respondent No.1 consisted of himself, his elder brother and three unmarried sisters. In the year 1959, Respondent No.1  got married  and alongwith his wife shifted to another  flat taken  on lease.  His elder brother and two unmarried sisters continued to be in occupation of the flat.      The  Prescribed   Authority  under   the  West   Bengal Government Premises  (Tenancy Regulation) Act, 1976 issued a notice to  Respondent No.1  calling upon  him  to  quit  and deliver possession  of the  flat  on  the  ground  that  the tenancy had  automatically terminated  as provided in s.3(2) of the  Act because  he had ceased to occupy it and that cl. (7) of the agreement of the tenancy had been violated.      Respondent No.  1 filed  a Writ  Petition under Article 226 alleging  that  since  Respondent  No.2  was  his  elder brother he was a member of his family and he was entitled to live in the flat even though Respondent No.1 himself was not living therein.  The petition  was  dismissed  by  a  Single Judge.      In appeal,  the Division Bench held that cl. (7) of the agreement of tenancy was not violated even if the tenant had himself  ceased  to  occupy  and  a  member  of  his  family continued to reside in the flat, and allowed the appeal. 516      Allowing the appeal by the State to this Court, ^      HELD: 1.  Respondent  No.  1  violated  cl.(7)  of  the agreement of  tenancy when  he ceased to occupy the premises himself. The judgment of the Division Bench is set aside and that of the Single Judge is restored. [521 A-B]

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    2. What  cl.(7) of  the agreement of tenancy stipulates is that the premises can be used by respondent No. 1 and the members of his family, that is to say, respondent No.1 could stay himself  along with  his  family  members  and  not  by respondent No.1  or the  members of  his family.  As long as respondent No.  1 is  residing  in  the  premises  he  could accommodate along with him any other member of his family in the premises.  But when  he ceases to reside in the premises and occupies other premises for residence as a separate unit other members  constituting a  separate unit cannot in their own right  as a  separate unit  continue  to  get  the  same without violating  cl.(7) of the agreement of tenancy. It is the condition  of the  lease that the tenant in whose favour the premises are leased should reside in the premises let to him and  not in  some other  premises during the currency of the lease. [519 E-G]      Baldev Sahai  Bangia v.  R.C. Bhasin,  [1982] 3  S.C.R. 670, distinguished.      3. To  meet the  growing demand for Government premises the State  Legislature had  to amend  the Act  by  the  West Bengal Act  XLVI of  1980, by introducing cl. (ia) in sub-s. (2) of  s.3 of  the Act  which provided  that a  tenancy  in respect of  a Government  Premises would stand automatically terminated without  any notice  to quit where the tenant had subsequently built  a house  or acquired (by purchase, gift, inheritance, lease,  exchange or  otherwise) a  house or  an apartment, either  in his  own name  or in  the name  of any member of his family, within a reasonable distance from such Government premises. [520 F-H]

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9963 of 1983.      From the  Judgment and  Order dated  3rd August 1983 of the Clacutta  High Court  in First  Misc. Appeal  (Mandamus) Tender No. 168 of 1983. 517      N.N. Gooptu, D.P. Mukherjee and G.S. Chatterjee for the Appellants.      Shankar Ghose and Rathin Das for the Respondents.      The Judgment of the Court was delivered by      VENKATARAMIAH,J. The  State of  West Bengal, the Deputy Secretary and the Assistant Secretary, Housing Department to the Government  of West  Bengal are  the appellants  in this appeal. The  above appeal  is filed by special leave against the judgment  dated August  3, 1983  of the  High  Court  of Calcutta in  Appeal from  Original Order  T. No. 168 of 1983 allowing the  appeal against  the judgment dated January 18, 1983 of  the learned Single Judge of the Calcutta High Court in C.R. No. 12684 (W) of 1976. Respondent No. 1, Saral Kumar Sen Gupta was an Upper Division Assistant in the Directorate of Food and Supplies, Government of West Bengal. In the year 1958 he  was allotted on lease a two-roomed flat bearing No. 5 in  Block ’F’  of the  Government Housing  Estate,  Karaya Road, Calcutta. The allotment was made under an agreement of tenancy which contained the terms and conditions under which the flat  had been allotted in his favour. Clause (7) of the agreement read as follows :           "(7) You  should use  the premises exclusively for           the purpose  of  residence  of  yourself  and  the           members of  your family  and for  no other purpose           whatsover."                                             (emphasis added)

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    It is  stated that  in the year 1958 the members of the family of  Respondent No.1,  Saral Kumar Sen Gupta consisted of himself,  his elder  brother  Santosh  Kumar  Sen  Gupta, Respondent  No.2,  and  three  unmarried  sisters.  The  1st respondent was  married in  the year  1959. After  some time Respondent No. 1 along with his wife shifted to another flat which he  had taken  on lease. His elder brother and his two unmarried  sisters   were  in  occupation  of  the  flat  in question. On  coming to know that Respondent No.1 had ceased to occupy  the flat  and that only his elder brother and his two  unmarried  sisters  were  residing  there,  the  Deputy Secretary, Housing Department of the 518 Government of  West Bengal,  the Prescribed  Authority under the West  Bengal Government  Premises  (Tenancy  Regulation) Act, 1976  (hereinafter referred  to as  ’the Act’) issued a notice to  Respondent No.1  calling upon  him  to  quit  and deliver possession  of the  flat  on  the  ground  that  the tenancy had  automatically terminated as provided in section 3(2) of  the Act  as he  had ceased  to occupy  it and  that clause (7)  of the  agreement of  tenancy had been violated. Aggrieved by  the said  notice Respondent  No.1 filed a writ petition in the High Court of Calcutta contending that since Respondent No.2  was his brother and as such a member of his family, Respondent  No.2 was  entitled to  live in  the said flat even  though Respondent No.1, the tenant was not living therein. The  writ petition  came up  for hearing before the learned Single Judge of the High Court who after hearing the parties dismissed  it. Against  the judgment  of the learned Single Judge  Respondent No.  1 filed  an appeal  before the Division Bench of the High Court. The Division Bench allowed the appeal  and made  the rule  absolute holding  that since Respondent No.2,  the elder brother of Respondent No.1 was a member of  the family  of Respondent No.1, clause (7) of the agreement of  tenancy had  not been violated. In other words the Division  Bench was  of the  view that clause (7) of the agreement of tenancy was not violated even if the tenant had himself ceased to occupy a member of his family continued to reside in  the flat.  This appeal  by special leave is filed against the judgment of the Division Bench of the High Court of Calcutta.      It may be mentioned here that after the judgment of the learned Single  Judge, the  State Government took possession of the  flat in  question on  January 27,  1983 and  it  has continued to  be in  the possession  of the State Government notwithstanding the  appeal of Respondent No.1 being allowed by the  Division Bench of High Court by virtue of an interim order passed  by this  Court. Even  now the  flat is  in the possession of the Government of West Bengal.      The  building   in  question   belongs  to   the  State Government and  the incidents  of its  lease are governed by the Act.  Section 3(2) of the Act provides that a tenancy in respect of  a Government  premises shall stand automatically terminated without  any notice to quit, where the tenant has violated the  terms of  the lease or made default in payment of rent for 519 three consecutive  months. The  provisos to  section 3(2) of the Act  are not relevant for the purposes of this case. The Prescribed Authority  appointed under the Act is entitled to recover possession  of any Government premises from a tenant under section  3(2) of the Act on the violation of the terms of  the   lease.  The   short  question   which  arises  for consideration in  this case  is whether  Respondent No.1 who was the  tenant of  the Government  premises in question had

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violated the  terms of  the lease.  We have  already set out above clause  (7) of  the agreement  of tenancy. It provides that the premises can be used exclusively for the purpose of the residence  of Respondent  No.1 along with the members of his family  and for no other purpose whatsoever. Admittedly, Respondent No.1 has not been residing in the premises from a date prior to the date on which the notice was issued to him calling upon  him to  quit and  deliver  possession  of  the premises. The  Division Bench  of the  High Court was of the view that  since Santosh  Kumar Sen Gupta, the elder brother of Respondent  No.1 had  been residing  in the premises, the condition contained  in  clause  (7)  of  the  agreement  of tenancy had  not been violated. It was of the view that even though Respondent  No.1 had  himself  along  with  his  wife shifted to some other flat or premises the building could be used by  his brother who could be said to be a member of the family of  Respondent No.1.  With great  respect  we  cannot agree with  the view taken by the Division Bench of the High Court.  What   clause  (7)   of  the  agreement  of  tenancy stipulates is  that the premises could be used by Respondent No. 1  and the  members  of  his  family,  that  is  to  say Respondent No.1  could stay  himself along  with his  family members and  not by  Respondent No.1  or the  members of his family. As  long as  Respondent No.  1 is  residing  in  the premises he  could accommodate  along  with  him  any  other member of  his family in the premises. But when he ceases to reside in  the premises  and  occupies  other  premises  for residence as  a separate  unit other  members constituting a separate unit  cannot in  their own right as a separate unit continue to  occupy the same without violating clause (7) of the agreement  of tenancy.  It is the condition of the lease that the  tenant in  whose favour  the premises  are  leased should reside  in the  premises let  to him  and not in some other premises during the currency of the lease.      The learned  counsel for  the Ist  Respondent drew  our attention to  the decision  of this  Court in  Baldev  Sahai Bangia 520 v. R.C.  Bhasin, [1982] 3 S.C.R. 670 and contended that this Court had  recognised the right of the members of the family of a  tenant to  reside in  a building  taken on  lease even after the tenant had left the premises. We have gone through that decision.  In that  case this  Court was concerned with clause (d)  of section  14(1) of the Delhi Rent Control Act, 1958 which provided that where the premises were let for use as a  residence and neither the tenant nor any member of his family  had   been  residing  for  a  period  of  six  month immediately  before   the  date   of  the   filing  of   the application, the  landlord could  apply for  eviction of the tenant. This  decision  is  of  no  assistance  to  the  Ist Respondent since  the language  of section  14(1)(d) of  the Delhi Rent  Control Act, 1958 is different from the language in clause (7) of the agreement of tenancy in the case before us. The expression ’neither the tenant nor any member of his family’ in  the Delhi  Rent Control Act, 1958 was capable of the construction  that if  either the  tenant or a member of his family  was residing in the premises section 14(1)(d) of that Act was not attracted. But in the present case the term contained in clause (7) of the agreement of tenancy required that the  premises could  be used  for the  residence of the tenant and  (along with  him) the  members of the family and not tenant  or the  members of  his family in the sense that the tenant stays somewhere else and his other family members stay in  the leased  premises. The  decision relied  on  is, therefore, clearly distinguishable.

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    It has  to be borne in mind that the buildings owned by the Government  are limited  in number  and there is a great demand for  allotment of Government premises. The Government cannot afford  to allow  one family to have the privilege of occupying two  buildings. It is in order to meet the growing demand for the Government premises the State Legislature had to amend  the Act  by the  West  Bengal  Act  XLVI  of  1980 introducing clause  (ia) in  sub-section (2) of section 3 of the Act  which provided  that a  tenancy  in  respect  of  a Government premises  would  stand  automatically  terminated without any notice to quit where the tenant had subsequently built a  house or  acquired (by purchase, gift, inheritance, lease, exchange  or otherwise)  a  house  or  an  apartment, either in  his own  name or in the name of any member of his family, within  a reasonable  distance from  such Government premises. We  have referred to the above clause only to show the magnitude of the 521 shortage of housing accommodation. In any view of the matter it has  to be held that Respondent No. 1 violated clause (7) of the  agreement of  tenancy when  he ceased  to occupy the premises himself.  The judgment of the Division Bench of the High Court  is, therefore,  liable to  be set  aside. It  is accordingly set  aside. The  judgment of  the learned Single Judge is restored.      The appeal is accordingly allowed. No costs. A.P.J.                                       Appeal allowed. 522