Calcutta High Court
Estate Manager, Estate Directorate ... vs Dilip Kumar De And Ors. on 19 March, 1996
Equivalent citations: (1997)2CALLT151(HC), 1996 A I H C 4562, (1996) 2 ICC 602, (1996) 2 CAL HN 515, (1997) 2 CALLT 151, (1997) 2 RENCR 544, (1996) 1 RENTLR 602
Author: Satyabrata Sinha
Bench: Satyabrata Sinha
JUDGMENT Satyabrata Sinha, J.
1. This appeal is directed against a Judgment dated 14.12.95 passed in CO. No. 11804(W) of 1995 whereby and where under the learned judge allowed the writ application filed by the writ petitioner questioning the legality and validity of a notice dated 19.6.95 as contained in annexure 'J' to the writ application, in terms whereof the writ petitioner was asked by the appellant to vacate the tenanted premises in purported exercise of his jurisdiction under Section 3(2) (ia) of the West Bengal Government Premises (Tenancy Regulation) Act, 1976.
2. The fact of the matter lies in a very narrow compass and are not much in dispute.
3. By reason of an agreement dated 10.7.71 as contained in annexure 'A' to the writ application, the writ petitioner, who was not a Government employee, was allotted a flat, being flat No. 0/2 in Maniktala M.I.G. Housing Estate. In terms of Clause 7 of the said agreement, the writ petitioner was not to takeover possession of the said flat if he is already in possession of any Government flat either in his own name or In the name of his relatives. It stands admitted that the writ petitioner along with his wife jointly became members of a Co-operative Society known as Iswar Chandra Vidyasagar Samabay Nibas Limited and was allotted a flat. It is not disputed that the said flat is situate within a radius of 25 Kms. from the premises allotted to him by the appellant.
4. It appears that in the month of July 1992, the petitioner filed an application for withdrawal of his membership and by a letter dated 10.7.92 the Board of Directors in its meeting held on 2.7.92 duly considered the said application for withdrawal of his membership and consequently it was declared that no flat of the society is now allotted in the name of the writ petitioner. By a notice dated 26.2.94, the appellant, Inter alia, informed that the said tenancy stood terminated on the ground of building his own house within 25 Kms. from the Housing Estate, being W-1/7 Iswar Chandra Vidyasagar Nibas under Section 3(2)(ia) of the West Bengal Government Premises (Tenancy Regulation) Act, 1976, and he was requested to hand over peaceful and vacant possession of the flat to the Government within 15 days thereof. The writ petitioner thereafter filed a representation in terms of his letter dated 6.1.95 wherein he stated that as he does not own any flat, he did not come within the purview of the said provision. An affidavit was also sworn by the writ petitioner wherein he, inter alia, alleged : "I do not own any flat/house in Iswar Chadra Nibas, Calcutta-700 054, within 25 kilometers." A certificate was also given by the Secretary of the aforementioned Iswar Chandra Vidyasagar Samabay Nibas Limited on or about 21.1.95 wherein again it was stated: "Sri Dilip Kumar De is not a member of Iswar Chanbra Vidyasagar Samabay Nibas Ltd.," and "he does not possess any flat". In view of the aforementioned representation of the writ petitioner together with the certificate and affidavit as referred to hereinbefore, the appellant withdrew it earlier notice date 26.12.94 by a letter dated 25.1.95. However, It is stated that later on it came to the notice of the appellant that the writ petitioner was having a joint ownership with his wife and by reason of his withdrawal of membership, the said flat now stands in the joint of his wife and son. However, without taking recourse to Section 3(2) (ia) of the Act, the Estate Manager served a notice to show cause upon the writ petitioner in terms of his memo dated 13.3.95 asking him to show cause as to why the tenancy of his flat No. 0/2 M.I.G. at Maniktala Housing Estate shall not be terminated on the ground of having a flat at Iswarchandra Vidyasagar Nibas Limited in the joint name of his wife and son. Upon receipt of the said notice, the petitioner filed his reply in terms of his letter dated 27.3.95 as contained in annexure 'I' to the writ application, wherein he, inter alia, stated that the provision of the said Act has no application as he at that time did not have any house or apartment in his name nor in reality he purchased any house or apartment. He also alleged that his wife, who was a Teacher and not dependant on him, bore the expenses for procurement of the said flat and no part of money was paid by him, and hence acquiring house or apartment in his name or in the name of any member of his family did not arise. He alleged that his son Depankar De was now the sole member of Iswar Chandra Vidyasagar Samabay NIbas Limited and he resides therein separately and independently. It was further alleged that his wife having retired from service applied on 28.2.95 for the withdrawal of her membership from Iswarchandra Vidyasagar Samabay Nibas Limited and her prayer for such withdrawal of membership had been duly granted by the management, and thus even his wife is no longer a member of the said society and the said flat No. B-4/7 at the said society does not lie in her name.
5. By reason of the impugned order dated 19.6.95 as contained in annexure 'J' to the writ application, the appellant, however, held that as the writ petitioner has purchased the said flat No. B-4/7 in the joint name of himself and his wife, even if the contention of the writ petitioner is accepted to be correct, he had half share in the said flat, and as such, his case comes within the purview of Section 3(2) (la) of the Act, and in that view of the matter, the tenancy stood terminated automatically in the year 1978.
6. The petitioner filed the writ application questioning the said order. He, apart from the documents referred to hereinbefore, also annexed a copy of the letter dated 27.3.95 addressed by the Chairman of the said Co-operative Society to his wife, wherein, inter alia, it was stated:
"Resolved further that in view of the resignation of Smt. Ila De from membership of the Society, it be put on record that henceforth membership of the society against the flat B-4/7 be vested in Sri Dipankar De only."
The petitioner also filed a representation before the Minister-in-Charge wherein he, inter alia, stated that neither he nor his wife possessed any flat and his son is the owner of the flat. The appellant in his affidavit in opposition, Inter alia, reiterated the facts as stated hereinbefore and submitted that all those actions of withdrawal of membership of the petitioner and by his wife were done in order to get rid themselves from the rigours of the provision of Section 3(2)(la) of the West Bengal Government Premises (Tenancy Regulation) Act, 1976, and the Rules framed thereunder. Along with the said affidavit in opposition, a copy of a letter issued by the Secretary of the said Co-operative Society to the appellant as contained in annexure "A' thereto, was annexed, which reads thus :
"In reply to your letter D.O. No. 294-E.D. dated 6.02.95 I am to state that Sri Dllip Kr. De was admitted to membership of the Society Jointly with his wife Smt. Ila De and, therefore, on 9.11.1978 the Flat No. B-4/7 was allotted to them jointly.
The Board of Directors in its meeting on 2.7.92 considered the prayer of withdrawal of membership made by Sri De and permitted such withdrawal and in the same meeting Sri Dipankar De, son of Sri Dilip Kr. De, who applied for membership of the Society was admitted to membership subject to the approval of the D.R.C.S which was granted thereafter.
Thus the flat B-4-7 was re-allotted jointly in the name of Sri Dipankar De and Smt. Ila De."
The said letter was mentioned in paragraph 3(n) of the affidavit-in- opposition which was traversed by the writ petitioner in paragraph 14 of the reply, which reads thus:
"With reference to the statement made in sub-paragraph No. 3 (m) and 3(n) the petitioner does not admit anything which is contrary to and inconsistent with the record. The respondent may be directed and/ or called upon to prove the same beyond all reasonable doubts."
The writ petitioner in his affidavit in reply, inter alia, stated:
"Moreover, the son of the petitioner has every right to purchase property in his own name of his own income or borrowing money from his mother and this amendment does not take away such right of borrowing money by son from his mother."
7. He further stated that the provision of the said Act is not applicable as his wife was also not a member of the said Society. He further denied and disputed that the said acquisition was made by him in the benami of his wife and/or his son. Curiously enough, in paragraph 16 of the affidavit-in-reply it was alleged that the said notice was issued by the appellant out of grudge although no such allegation had been made by the writ petitioner at any point of time or even in the writ application. He further stated that the certificates issued by the Chairman of the Cooperative Society are correct. He denied that the flat in question was constructed in the year 1978, but he did not state as to when actually the said flat was constructed. It may be recorded that the writ petitioner did not deny or dispute the allotment of the flat in his name as also in his wife's name Jointly by the said Co-operative Society.
8. During pendency of the writ application, a supplementary affidavit was filed by the respondent No. 2 annexing therewith a certificate dated 18.9.95 issued by the Secretary of the said Co-operative Society, which reads thus:
"It is hereby stated that Sri Dilip Kumar De enjoyed membership alongwith ownership of flat No. B-4/7 of this housing Society. He used to let out his flat from time to time and then transferred his flat finally to his son Sri Dipankar De who is now living in that flat with his parents."
9. The learned trial Judge in the impugned judgment, inter alia, held that the transaction assumed the character of benami as the purchase was founded by the petitioner and his wife. He further held that the petitioner's wife or son, in the facts and circumstances of this case, do not come within the purview of the definition of 'family', and thus, the transfer, if any, is not hit by the provision of the said Act. The learned trial Judge further held that both the son and the wife of the petitioner had independent income. The learned trial Judge further observed that as the petitioner denied transfer of any flat, in absence of any tangible material that the re-allotment of the flat was the result of withdrawal of membership, and thus, such withdrawal can not be equated with the word 'transfer'. It was further held that when withdrawal was allowed, the matter was left entirely to the wisdom of the respondent authorities to reallot the flat in favour of Dipankar or anybody in his place. As regards annexure 'X' to the supplementary affidavit which is a certificate dated 20.9.95, although genuineness thereof was not questioned, the learned trial Judge held: "There is no material on record that there was any participation of the petitioner and the member of his family in the said enquiry ever." It was further held:
"The respondent No. 2 has affirmed in his affidavit-in-opposition through annexure-A about the withdrawal of membership and allotment of the flat where the question of "Transfer" is meticulously silent. The controversy has raised a gulf between "Transfer & Withdrawal". The authorities considered the withdrawal of the membership as already indicated and allotment of flat is a subsequent event independent of withdrawal. Thus, the annexure-'Y' appended to the supplementary affidavit of the respondent No. 2 does not reveal the actual state of affairs when the expression "Transfer" was given currency. Even if the court pays the highest premium to the claim of the respondent, the withdrawal of membership does not confer any right on the respondent to terminate the tenancy of the petitioner at Manicktala Housing. In the background of the above, it is predominant that there is a rupture in the family where his son Dipankar is living at 1CV having an independent income of his own divorced from the income of his parents. The word "dependent" is a question of fact, but, not a matter of inference. Dipankar had no income of his own had not been traversed in the affidavit by the respondents."
10. The learned trial Judge further held that the Act is a beneficial legislation. It was observed that the technicalities are not the hand-maid of justice. In view of his findings aforementioned the learned trial Judge came to the conclusion that the action on the part of the writ petitioner is not such which disentitles him to explore the relief in the writ application.
11. Mr. Bhattacharya appearing on behalf of the appellant has raised a short question in support of this appeal. Learned counsel submits that the learned trial Judge must be held to have misdirected himself in so far as he failed to take into consideration the important document as contained in annexure 'A' to the writ application, as also the said certificate dated 18.9.95 as contained in annexure 'Y' to the supplementary affidavit filed by the respondent No. 2. In any event, the learned counsel contends that the learned trial Judge committed a serious error in holding that in similar situation, tenancies were not terminated. Learned counsel has also taken us through the subsequent event and has submitted that the writ petitioner forcibly occupied the said flat despite the fact that the same had been taken possession of by the appellant during the pendency of the appeal, and thus the writ petitioner having not approached the court with clean hands, he has disentitled himself from any relief from this court. Learned counsel in this connection has relied on the decisions reported in AIR 1991 All 95, and . Learned counsel has further relied on an unreported decision of B.M. Mitra, J. in Matter No. 3835 of 1994 disposed of on 16.1.96 for the purpose of showing that the proceedings under the said Act is a summary proceeding.
12. Mr. Mitra, learned counsel appearing on behalf of the respondent/ writ petitioner raised the following contentions: (1) Estate Manager had no jurisdiction to consider the question of benami. Reliance in this connection has been placed in the decision ; (2) Agreement having been entered into in the year 1971 and the Act having come into force in the year 1976 the provisions their of cannot have any application. Reliance in this connection has been placed in the decision reported in 1978 CLJ 96; (3) Writ petition is maintainable even to enforce an agreement and reliance in this connection has been placed on the decision . Mr. Maitra urged that in a proceeding of this nature principles of natural Justice must be complied with as by reason of the impugned order, the writ petitioner has suffered civil consequence. It was submitted that after the show cause was filed by the writ petitioner, no hearing was given and evidently, the appellant had procured materials behind the back of the writ petitioner and thus, the entire order must be held to be vitiated. Learned counsel in support of his aforementioned contention relied upon the decisions , Olga Tellis case and ; (4) The appellant, having accepted rents from writ petitioner upto June 1995, is estopped and precluded from directing eviction of the writ petitioner, and thus, the impugned order as contained in annexure 'J' to the writ application, in terms whereof the tenancy stood terminated with effect from 1978, must be held to be a nullity; (5) Upon true construction of the said Act, it would appear that a person can be deprived of his right of tenancy only if he had acquired any house and not when it is allotted to him.
13. It was further submitted that the action on the part of the appellant ought to have been reasonable and the same stands vitiated as the principles of natural justice have not been complied with. Reliance in this connection has been placed on the case of Ramana v. LA. Authority of India . It was further submitted that the impugned order as contained in annexure 'J' to the writ application had been passed without any evidence. According to the learned Counsel, the Certificate dated 18.9.95 which has been annexed to the supplementary affidavit could not have taken into consideration as the same had been passed after filing of the writ application as well as after passing of the impugned order dated 19.6.95.
14. The learned Counsel submits that the word 'Family' having been defined, the Dictionary meaning cannot be taken recourse to and in support of his aforementioned contention the learned counsel has relied on the decision in the case of Bishnu Ram Borah v. Parag Saikia , State Bank of India v. N.S. Mont , M/s. Star Paper Mills Ltd., v. Collector, Central Excise, Meerut and the definition of 'Family' from Mitra's Legal and Commercial Dictionary at page 305.
15. According to the learned Counsel, the appellant is bound by the documents which were in their possession and they cannot be permitted to improve the reasoning in the impugned order by filing an affidavit. Reliance in this connection has been placed on (Mohinder Singh Gill and Anr. v. The Chief Election Commissioner).
16. The West Bengal Government Premises (Tenancy Regulation) Act, 1976 was enacted to provide for the regulation of certain incidents of tenancy in relation to Government premises in West Bengal. It is not in dispute that the flat in question which was allotted in favour of the petitioner in the year 1971 would come within the purview of the definition of the 'Government premises' as contained in Section 2(a) thereof. The word 'tenant' has been defined in Section 2(0 of the said Act to mean any person be whom the rent of any premises is, or but for a special contract would be, payable and includes in the event of such person's death, such of his heirs as were ordinarily residing with him at the time of his death. Section 3 of the said Act provides for termination of tenancy. Clause (2) of Section 3 with which we are concerned in this appeal provides that the 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 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. Clause (a) of the Explanation appended thereto defines the word 'apartment' for the purpose of Section 3 and 3A thereof which shall have the same meaning as in the West Bengal Apartment Ownership Act, 1972. The word 'family' has been defined as follows:-
"Family" shall include parents and other relation of the tenant who ordinarily reside with him and are dependant on him."
17. The word "reasonable distance" has been defined to mean any distance not exceeding twenty-five kilometres, |
18. Section 3A provides that a tenancy would be void if held by a tenant owing a house or apartment on the date of allotment of a Government premises. Section 4 mandates the tenant to restore the vacant possession of the premises occupied by him in favour of the prescribed authority upon termination of a tenancy under any provisions of Section 3 and on his failure to do so, the prescribed authority is empowered to take such steps or use such force as may be necessary to take possession of the premises and may also enter into such premises for the aforementioned purpose. Section 5 provides for penalty for unauthorised subletting. Section 12 provides for a non-obstante clause as the provisions of the said Act shall have effect notwithstanding anything contained in any other law for the time being in force or in any contract, express or implied, or in any custom or usage to the contrary.
19. Section 13 bars the jurisdiction of the Civil Court to decide or deal with any question which is by or under this Act required to be decided or dealt with under the provisions of this Act.
20. The constitutionality of the said Act has not been questioned and thus this court will have to proceed on the basis that the provisions of the Act are constitutional.
21. Clause 7 of the agreement as contained in annexure 'A' to the writ application as well as the different provisions of the W.B. Government Presmlses (Tenancy Regulation) Act, 1976 as set out hereinbefore clearly states the intention of the Legislature that in the event any tenant is in possession of any other Government premises held by himself or any other relative, acquired any house or apartment in his own name of in the name of his family members, the tenancy shall stand automatically terminated. Termination of such tenancy, therefore, is dependant on the existence of the fact as to whether the petitioner comes within the mischief of Clause 7 of the agreement or the provision of Section 3(2) of the said Act.
22. Before termination of such tenancy, no notice is to be given nor the principle of natural justice is required to be complied with.
23. We are, therefore, not in a position to acced to the contention of the learned Counsel that the provision of the said Act shall have no application in the instant case particularly in view of the provision contained in Section 12 aforementioned.
In the case of Sukumar Banerjee v. Chairman, Cal Improvement Trust reported in 1978(1) Cal L.J. 96 the court was concerned with a different question. Therein a condition was imposed which was beyond the terms of the agreement and the tenant refused to comply with the extraneous terms and there was threat by the authorities to evict with the police assistance under Section 157 of the Calcutta Improvement Trust Act. The learned Judge held that the threat as per order was illegally made and thus liable to be quashed. The said decision, therefore, has no application in the facts and circumstances of this case.
24. There cannot be any doubt whatsoever that in the case of Calcutta Gas Co. (Prop.) Ltd. v. State of W.B. the apex court, inter alia, held that any legal right can be enforced under Article 226 or Article 32 of the Constitution of India. Such right, however, must be the personal or individual right of the petitioner himself. In that case also although the Calcutta Gas Co. Ltd. has obtained the right to manage the Oriental Gas Company for a period of 20 years and to receive remuneration for the same in terms of the provision of Section 4 West Bengal Oriental Gas Company Act, 1960 the petitioner was deprived of that right for a period of five years. He therefore filed a writ application questioning the validity of the said Act. Such is not a position here. We do not mean that in the instant case, the writ application will not be maintainable. In our view, the writ application will be maintainable as the appellant has exercised his Jurisdiction under a statute and has not sought to enforce contract-qua-contract.
25. The question which now arises for consideration is as to whether the appellant had raised the question 'Benami'. In our considered opinion, such a question has not been raised in the instant case. On the other hand the writ petitioner/respondent himself had raised the said question, inasmuch as, in his reply to the show cause notice he categorically stated that although the flat was allotted in the joint name of his son and his wife, his wife has spent the amount for acquiring the flat in question. It was, therefore, open him to prove the said fact which could not be done before the appellant, inasmuch as, the proceeding under the said Act is a summary proceeding. If the proceeding under the said Act is a summary proceeding, the petitioner could have raised the contention in a properly instituted suit, inasmuch as, the question of Benami would be essentially a question of fact. In the case of Bishnu Ram Borah v. Parag Saikia it has been held that the question of fact cannot be gone into a writ proceeding and thus the said decision instead of helping the petitioner militate against his contention. So far as the compliance of principle of natural justice is concerned, evidently Section 3(2)(ia) of the Act excludes the same. Sub-section (2) of Section 3 of the Act provides for automatic termination of tenancy without any notice to quit.
26. In the instant case, however, the appellant complied with the principle of natural justice presumably as a special case by the appellant in order to be satisfied about the correctness of the certificate issued by the authority of the said Co-operative Society for arriving at a conclusion that the petitioner had not acquired any apartment in his own name or in the name of any member of his family.
27. The conduct of the petitioner clearly shows that he had all along been aware of the consequences of acquisition of apartment either in his own name or in the Joint name of himself and his wife. It is not disputed that the petitioner and his wife become the members of the said Cooperative Society and a flat was allotted in their favour. The question as to whether when such flat was constructed becomes irrelevant. The petitioner being a member of the said Co-operative Society having been owner of an apartment had the knowledge in that regard and thus burden was on him to show that the flat in question was constructed after he ceased to be a member. For obvious reasons he did not chose to do so.
28. There cannot be any doubt that the principle of natural justice is required to be complied with unless that same is barred expressly or by necessary implication by a statute. In the instant case it is barred expressly by reason of Section 3(2) of the Act. In the instant case the principle of natural justice was not required to be complied with. It is therefore not a case where the appellant has taken a procedural sword and thus must perish with the sword as has been held by Frankfurter, J in the case of Vitarelli v. Searon reported in 1959 US 535 which has been referred to by the apex court in the case of Ramana v. LA. Authority of India . In the case of A.K. Kraipak v. Union of India the Supreme Court held that the dividing line between an administrative power and a quasi-Judicial power is quite thin and is being gradually obliterated. The Supreme Court therefore held that the principle of natural justice is required to be complied with even while passing the administrative order involving civil consequences. It was further observed that the rules of natural justice are not embodied rules. Even in a case where principles of natural justice are to be complied with, the apex court observed that whenever a complaint is made before a court that some principle of natural justice had been contravaned the court has to decide whether the observance of that, rule was necessary for a just decision on the facts of that case. In the instant case as noticed hereinbefore the principles of natural Justice have no application and it is excluded by the statute. It is now well-settled that the principles of natural justice should be viewed in circumstantial flexibility. In any event in the instant case, there has been a substantial compliance of principle of natural justice. The petitioner has been offered all opportunities to raise all defences and the impugned order has been passed upon taking into consideration the contention raised by the petitioner. In view of the stand taken by the petitioner, it was for him to prove his case. Furthermore we have taken into consideration the material facts and are of opinion that the impugned order is sustainable on the basts of materials made available by the petitioner.
29. In Bishnu Ram Borah v. Parag Saikia the Supreme Court clearly held that when a person's right is not affected, a report of a Deputy Commissioner can be relied upon for the purpose of refusing to grant liquor licence by the Board of Revenue, inasmuch as, grant of liquor licence was not a matter of right but merely in the nature of privilege. The petitioner also did not have any absolute right to occupy the said premises for ever. He could occupy the said premises so long he complied with the terms and conditions of the Agreement and/or did not violate the provision of Section 3(2) of the Act.
30. In the case of D.K. Yadev v. J.M.A. Industries Ltd. , the apex court was considering a different question. In that case the Supreme Court was considering the provision of Certified Standing Orders in terms whereof a person's service would automatically stand terminated if he absented himself without or beyond the period of sanctioned leave for more than 8 days. The said provision has been held to be ultra vires. There cannot be any doubt that the word "civil consequences' is of wide amplitude which includes within its ambit a legal right. In that case, however, as noticed hereinbefore the principles of natural justice were not excluded. For the self-same reasons the decision of the Supreme Court in the case of Sukhdev Singh v. Bhagatram and the case cannot be said to have any application in the instant case.
31. We may now consider as to whether the petitioner's case come within the purview of Section 3(2)(la) of the Act or not. In the certificate dated 10.7.92 as contained in annexure 'B' to the writ application the Secretary of the Society clearly stated that no flat is now allotted in his name which clearly implies that there existed a flat and the same was allotted in his favour prior to issuance of such certificate.
32. The word 'now', in our opinion, is of great importance. In terms of the said certificate, thus, such allotment of flat ceases to have any application because of withdrawal of his membership.
33. The petitioner in his reply never denied or disputed that he was the owner of the flat in question.
34. It must also be borne in mind that the principle of natural Justice should not be stretched too far as it is well known that those who commit wrong often invoke the said principle to avoid the consequences, as has been held in the case of R. v. Secretary of State for the Home Department, exports Mughal reported in 1973(1) WLR, 1133; 1973(3) All ER 796.
35. It is also not a case where the reasoning of the statutory authority are sought to be supported by Statements made in the affidavit. Mohinder Singh Gill (supra), therefore, does not apply to the fact of the present case,
36. So far as the submission of Mr. Maitra, the learned Counsel, to the effect that the Rule of estoppel will apply as against the appellant is concerned, we are of the opinion that the same has no force inasmuch as it is well known there cannot be any estoppel against the statute. After the 1976 Act came into force, the tenancy became a statutory one. The said statute does not provide that even after automatic termination of tenancy, the same would revive only because during the intervening period, rent was deposited.
37. In any event, there is no material on the record to know that the competent authority accepted the same knowingly and internationally so as to waive their statutory right. Nothing has been stated in the writ petition as to how and in what manner the rent was deposited.
38. The tenancy stands terminated on happening of an even automatically and in that view of the matter, in our opinion, the question of any estoppel by reason of acceptance of rent does not arise at this stage.
39. In fact after the notice dated 26.2.94 was withdrawn by the letter dated 25.1.95, the petitioner took the extra precaution of withdrawing the name of his wife also from the membership. The petitioner's wife filed an application for withdrawal of her membership from 20th April, 1995 which was accepted on 22nd April, 1995 and on that date itself, the membership of the society against flat No. B 4/7 vested in Sri Dipankar Dey only; which clearly shows that after the petitioner withdrew himself from the membership of the Society, the membership stood in the name of the petitioner's wife and his son and upon withdrawal of the membership by the petitioner's wife, the same vested in Sri Dipankar Dey only. In all the certificates and in the replies to the show-cause, the petitioner in relation to his assertion has used present tense. It is also partinent to note that whereas the petitioner made out a case that his wife had borne all. the expenses from acquiring the said flat in affidavlt- in-reply it was categorically stated that his son had borrowed money from his mother. It is true as has been submitted by Mr. Maitra that the appellant in ordinary course ought not to have taken into consideration the certificate granted by the Secretary as contained in annexure "A' to the affidavit-in-opposition; but as indicate hereinbefore, the petitioner in paragraph 14 of his affidavit-in-reply did not deny or dispute the fact that the contents of the said certificate are not correct. Paragraph 14 of the said affidavit-in-reply clearly shows that the petitioner had accepted the statement made in paragraph 3(n) of the affidavit-in-opposition to be correct inasmuch as the said denials are absolutely vague in nature and thus would be deemed to have been admitted. Once contents of the said certificate are admitted, the petitioner can not be said to have been pre- Judicate by consideration thereof by the appellant before passing the impugned order.
40. It is now well-known that a fact admitted need not be proved. Moreover, the said certificates in our opinion, appears to be in conformity with the certificates granted by the authorities of the said Co-operative Society and his reply. So far as the certificate dated 18.9.95 as contained in annexure 'X' to the supplementary affidavit filed by the appellant is concerned, it is true that the same was issued after the writ application had been filed. Mr. Bhattacharyya, however, had made a statements before us that the said Judge invited the appellant to produce any other documents to show that the petitioner had at any point of time acquired any flat. Even if the said certificate date 18.9.95 is not taken into consideration the chain of events unmistakably point out that the petitioner being the owner of the flat first transferred his share in favour of his son and subsequently his wife also transferred her share in his favour as a result whereof the petitioner's son became the sole owner of the flat in question. The aforementioned conduct on the part of the petitioner clearly goes to show that the said transactions were entered into with a view to get rid of rights of the provisions of Section 3(2)(ia) of the said Act. It is now well-settled that documents have to be read as whole in order to ascertain intention of the parties having regard to the surrounding circumstances as also their conduct. In Inderjeet Singh Sial and Anr. v. Karam Chand Thapar , the apex court observed :-
"The commodity goes by its value; not by the wrapper in which it is packed. A man is known for his worth; not for the clothes he wears. Royal robes worn by a beggar would not make him a king. The document is weighed by its content, not the title. One needs to go to the value, not the glitter. All the same, we do not wish to minimise the importance of the right words to be used in documents. What we mean to express is that if the thought is clear, its translation in words, spoken or written may, more often that not, tend to be faulty. More so in a language which is not the mother tongue. Those faulted words cannot bounce back to alter the thought. Thus in sum and substance when the contracting parties and the draftsman are assumed to have known that the word 'royalty' is meant to be employed to secure for the State something out of what the State conveys, their employment of that word for private ensuring was not intended to confer on the assignor the status of the Sovereign or the State and on that basis have the document voided. Therefore, we are of the view that the word . 'royalty' was used in the deed misdescriptively and was really meant to cover an important item of the consideration due for future payments."
The aforementioned authoritative pronouncement is, therefore, in our opinion, clearly provides for an answer to the question as to whether allotment would amount to transfer or not. It may be noticed that even Frankfurter, J. in Massachusetts B. & INS Co. v. United States reported in 352 U.S. 128, observed that there is no surer way to misread a document than to read it literaly. The word, 'allotment' has to be read in its ordinary sense and not as has been stated in Supreme Court on Words and Phrases by Surendra Malik. The meaning of a word depends upon the intention of the law makers. It is interesting to note that in Concise Oxford Dictionary, the word 'allotment' has been stated to mean, 'apportioning in" share allotted to one; one's lot in life; public land let out for cultivation'. In the instant case Clause l(a) of sub-section (2) of Section 3 of the said Act clearly shows that it is not building of the house alone which would come within the mischief of the said provision, but acquisition of a house or apartment either by purchase, inheritance, lease, exchange or otherwise would also bring within its purview of mischief of the properties. Apartment has been defined in Section 3A of the West Bengal Apartment Ownership Act. 1972 to mean a part of a property having a direct exit to a road, street or highway or to a common area leading to such road, street or highway which together with its undivided interest in the common areas and facilities from an independent residential unit. The West Bengal Apartment Ownership Act, 1972 had been enacted to provide for an ownership of an individual apartment and make such apartment inheritable and transferable property. When Co-operative Society is formed for the purpose of building a housing complex for the purpose of allotment of flats amongst the members, the provisions of the said Act will apply. Section 3A of the said Act clearly states that where a Co-operative Society is the owner in respect of a property or part thereof, a member of such society in legal occupation of an apartment comprised in such property or such part shall be deemed to be the owner of such apartment within the meaning of the provisions thereof excepting those of sub-section (1) of Section 4 there of. Section 4 sub-section (1) of the said Act provides that each apartment owner shall be entitled to the exclusive ownership and possession of his apartment. As indicated hereinbefore, the word 'apartment' will have the same meaning as assigned in the West Bengal Apartment Ownership Act, 1972 and thus the acquisition of an apartment will have to be considered in the light of the provisions of the said Act, Furthermore, the word, 'otherwise' has also a significant role to play.
41. In that view of the matter we are of the opinion, that in view of the aforementioned provisions it cannot be said that when allotment of a flat is made in favour of a member of the Co-operative Society, he does not become the owner thereof.
42. A great deal of arguments has also been advanced as regards definition of family. As noticed hereinbefore, Mr. Maitra has referred to various decision for the purpose of showing that the dictionary meaning should not be assigned where the word, 'family' is defined. For more than one reason, Mr. Maitra's submission cannot be accepted. The word, 'family' has been defined as follows :-
"'family' shall include parents and other relations of the tenant who ordinarily reside with him and are dependant on him."
It is now well-known that expression, 'includes' is very generally used in interpretation clauses in order to enlarge meaning of the Words and Phrases occurring the body of the Act and when it is so used these words or phrases must be construed as comprehending not only such things as they signify according to their natural import, but those things which the interpretation clauses declares that they shall include. The word, 'include', therefore, is an expression of extension. It imports addition. It adds to the subject matter already comprised in the definition. In Shree Gollalwshwar Dev and Ors. v. Gangawwa Kom Shantayya Math and Ors. , the Supreme Court held that under the provisions of Bombay Public Trust Act as persons having interest in the Trust comes within the purview of the definition occurring in Section 2(10) and Section 50, a suit by person interested is maintainable although such suit might not have been maintainable in terms of Section 92 of the Code of Civil Procedure. Without multiplying decision on the said point suffice it to refer to a passage from G.P. Singh's Principles of Statutory Interpretation at page 122 which reads thus:-
"The word 'include' is very generally used in interpretation clauses in order to enlarge the meaning of words or pharases occurring in the body of the statute; and when it is so used those words or phrases must be construed as comprehending, not only such things, as they signify according to their natural import,' but also those things which the interpretation clause declares that they shall include."
Reference in this connection, may also be made to Carter v. Bradbeer reported in 1975(3) All England Law Reporter page 158 at pages 164 and 168. In this view of the matter, in our opinion, the decision of the Supreme Court , and cannot be said to have any application whatsoever in the instant case. As by reason of such definition, the extended meaning has been given to the word family in our opinion, the dictionary meaning of family must be held to be included in the said provisions as thereby the intention of the law maker could not have been ignored those persons who were natural members of the 'family'. In Black's Law Dictionary at page 543, the word, 'family'. inter alia, has been defined thus:-
"Most commonly refers to group of persons consisting of parents and children, father, mother and their children; immediate kindered, constituting fundamental social unit in civilised society. Husband and wife and their children, whereever they may reside, and whether they dwell together or not."
It is not disputed that wife will come within the purview of definition of family. The same would also be evident from Mitra's Legal and Commercial Dictionary at page 305 upon which Mr. Maitra himself placed reliance upon as also Oxford Shorter Dictionary upon which Mr. Bhattacharyya relied upon.
43. In the premises aforementioned, it is, clear that the writ-petitioner- respondent No. 1 at one point of time was owner of at least a portion of the flat which would bring him within the purview of mischief of Section 3(2)(ia) of the Act. As noticed hereinbefore, the said Act was enacted to provide for regulation of certain incidents of tenancy. The word, 'regulation' has to be construed keeping in view the object and purport of the said Act. The Government let out its premises or allots the same either to its employees or to out-siders. The intention of the said Act is absolutely clear inasmuch as such allotment can neither be made nor can be allowed to continue in the event the allottee acquires any other property so as to have a roof over his head. We cannot but take Judicial notice of the fact that there has been an execute shortage of Government premises. The Government is not in a position even to allot house either on rent or by way of conditions of service event to its own employees. If in such a situation a stringent measure is required to be taken as against the person who had already acquired a house, no exception thereto can be taken; particularly, in view of the fact that to us it appears that transactions entered into by the petitioner are by way of camouflage or facade. It is in that sense, we are of the opinion that the petitioner should not be held to be entitled to any relief as he had not approached this court with clean hands. We, however, agree with the contention of Mr. Maitra that we cannot consider the conduct of the petitioner after the writ application was disposed of. However, it is well-known that he who claims equity must came with clean hands. Reference in this connection may be made to apart from the decisions relied upon by Mr. Bhattacharyya being and AIR SC 579.
So far as the finding of the learned trial Judge to the effect that as in several other cases tenancy was not terminated is concerned, the same in our opinion, suffers from an obvious error. Article 14 of the Constitution of India mandates equality before law an equal protection of law. Whether there exists an illegality, it is incurable. Reference in this connection may be made to and . It is not necessary to multiply decisions on this point inasmuch as it is a settled law that illegality cannot be allowed to be perpetuated.
44. For the reasons aforementioned, we are of the opinion that the learned trial Judge has committed an error in allowing the writ application. This appeal, therefore, succeeds. The impugned judgment and order dated 14.12.95 is set aside and the writ application of the writ-petitioner is dismissed.
45. However, before parting with this case, we may notice that some events had taken placed during the pendency of the writ application as also this appeal. Allegedly, during pendency of the writ application, the appellant took possession of the flat despite existence of an order of injunction which the appellant has sought to explain by saying that he was not aware thereof. However, it appears that despite the fact that the appeal has been preferred within one week i.e. on 21.12.95 and the stay application was filed on 22.12.95, the writ-petitioner-respondent No. 1 has broken open the lock. However he has sought to explain the same in his Affidavit-in-opposition. We do not intend to enter into aforementioned controversy or pronounce our findings on that issue one way or the other inasmuch as it was contended before us by the learned Counsel for the writ-petitioner-respondent No. 1 that the appeal should not be heard unless contemnor uurges himself although such a contention was raised before the learned trial Judge. We, however, direct the appellant to allow the writ-petitioner to collect all his belongings, if any, upon preparation of an inventory at an early date.
46. The appeal is allowed. However, in the facts and circumstances of the case, there will be no order as to costs. Prayer for stay as made is refused.
Satya Narayan Chakrabarty, J.
47. I agree,