Back
1995 Supreme(Cal) 451
High Court Of Calcutta
Rabin Bhattacharyya
DILIP KUMAR DEY - Appellant
Versus
STATE OF WEST BENGAL - Respondent
C. O. 11804 Of 1995
Decided On : 12/14/1995
ANIL MUKHERJI
A tenant's ownership of another flat within a 25 km radius does not violate the West Bengal Premises (Tenancy Regulation) Act, 1976 if the tenant has withdrawn his membership from the housing society where the flat is located and if the tenant's son, who occupies the flat, is not dependent on him.
Headnote:
WEST BENGAL PREMISES (TENANCY REGULATION) ACT, 1976 - SECTION 3(2) - TENANCY TERMINATION - SINGLE FLAT OWNERSHIP WITHIN 25 KM RADIUS - FAMILY DEFINITION - WRIT OF MANDAMUS - AVAILABILITY.
Fact of the Case:
The petitioner, a tenant in a government housing estate, challenged the termination of his tenancy on the ground that he owned another flat within a 25 km radius, in violation of the West Bengal Premises (Tenancy Regulation) Act, 1976. The petitioner claimed that he had withdrawn his membership from the housing society where the other flat was located and that his son, who occupied the flat, was not dependent on him.
Finding of the Court:
The court found that the petitioner had not transferred the flat to his son and that the withdrawal of membership did not amount to a transfer. It also found that the petitioner's son was not dependent on him and that, therefore, the petitioner did not fall within the definition of "family" under the Act. The court further held that the termination of the petitioner's tenancy was unreasonable and that he was entitled to a writ of mandamus directing the respondents to reinstate him in possession of the flat.
Issues: 1. Whether the petitioner's ownership of another flat within a 25 km radius violated the West Bengal Premises (Tenancy Regulation) Act, 1976. 2. Whether the petitioner's son was a member of his "family" under the Act. 3. Whether the termination of the petitioner's tenancy was reasonable. 4. Whether the petitioner was entitled to a writ of mandamus.
Ratio Decidendi: 1. The court held that the petitioner's ownership of another flat within a 25 km radius did not violate the Act because he had withdrawn his membership from the housing society where the flat was located and because his son, who occupied the flat, was not dependent on him. 2. The court held that the petitioner's son was not a member of his "family" under the Act because he was not dependent on him. 3. The court held that the termination of the petitioner's tenancy was unreasonable because the respondents had not followed the proper procedure and because the petitioner had not been given a hearing. 4. The court held that the petitioner was entitled to a writ of mandamus because he had no other adequate remedy.
Final Decision: The court issued a writ of mandamus directing the respondents to reinstate the petitioner in possession of the flat.
( 1 ) THE petitioner has initiated the instant writ application for mandamus commanding the respondent to set aside, rescind or withdraw the annexure-J dated 19. 6. 95, certiorari, Rule NISI, injunction and for other consequential reliefs.
( 2 ) THE gravamen of the allegations which generated the initiation of the writ application is that the petitioner was a lawful tenant at Flat No. O/2 Maniktala Govt. Housing Estate, saddled with obligations to fulfill the conditions. The rent, as determined, according to the terms of the tenancy, was for sum of Rs. 235/- payable per month inclusive of occupier's share of taxes and external service charges bereft of payment of electricity charges.
( 3 ) THE petitioner, in due performance of the agreement, continued in possession. With the passage of time, the petitioner applied for withdrawal of joint membership of Iswarchandra Vidyasagar Samabay Niwas Ltd. a different housing at Bagmari which was acceeded to by the respondent opposite parties dated 10. 7. 92.
( 4 ) IN the premises, the petitioner was not armed with any flat in the said Niwas and the provisions of the West Bengal Premises (Tenancy Regulation) Act, 1976 became inoperative. The petitioner never owned any flat at B-4/7 in the said Niwas and a certificate was duly issued by the authorities. The notice of termination was not kept alive by the authorities, since withdrawn. A show-cause notice was issued which was replied to by the petitioner.
( 5 ) THE tenancy of the petitioner at Flat No. O/2 at Manicktala Housing Estate, however, stood terminated on the foot of purchase of a flat by the petitioner at ICV, Bagmari Road. The petitioner denied the membership, ownership and purchase of any flat beyond Flat No. O/2 at Maniktala.
( 6 ) IN the back-ground, the notice dated 9. 6. 95 is patently lost its sting and illegal which was served and/or issued on the imagination of purchase of a flat in the Housing Estate. The right of the petitioner cannot be snapped off and for redressal of the grievance, he took the aid of writ to enforce his right when possession of his flat at Manicktala was denied preventing access of the petitioner to it.
( 7 ) THE claim of the petitioner is sought to have been unfounded by the respondent No. 2 on the pure and simple ground that the petitioner was a tenant of Flat No. O/2 at Manicktala Middle Income Group Govt. Housing Estate who purchased a flat jointly with his wife being Flat No. 8-4/7 at ICB Samabay Ltd. , in the year of 1978, lying within a distance of 25 kms. from the residence of the writ petitioner. Such purchase folds the right of the petitioner to become a tenant by the provisions of the aforesaid statute governing the relationship between the petitioner on the one hand and the respondent on the other. Notices galored for termination of tenancy at Manicktala as the acquisition of flat at Bagmari became dominant for the letter dated 14. 2. 95.
( 8 ) IT assumed the character of benami as the purchase was founded by the petitioner and his wife. The representation of the petitioner was made known to him by the authorities. On withdrawal of membership on 9. 11. 78 at ICV with a request for allotment in favour of Dipankar and his mother brings the action within the fold of the Act who cannot avoid the rigour of it by which the parties are governed.
( 9 ) THE entire attempt of the petitioner is a contravance to keep himself away from the purview of the Act. The tenancy has been rightly terminated and the letter dated 16. 9. 95 was procured by the petitioner from the society that he did not own any flat which in fact was contrary to the actual state of affairs. The petitioner has his remedy elsewhere which cannot be explored by resorting to writ to the exclusion of the specific remedy. Supplementary affidavit is the replica of the writ.
( 10 ) A side fact has been given currency that he was thrown out of possesion, but all his personal belongings are still in the said flat
