Calcutta High Court
In Re: Samarendra Mohan Gupta And Anr. vs Unknown on 7 December, 1989
Equivalent citations: (1990)1CALLT342(HC)
JUDGMENT A.K. Nandi, J.
1. This is an application under Section 29B(9) proviso of the West Bengal Premises Tenancy Act and one under Article 227 of the Constitution of India.
2. The landlady figuring as opposite party in this case filed an application under Section 29B of the West Bengal Premises Tenancy Act for eviction of the tenants-petitioners from two rooms in the ground floor in the disputed holding. Her husband was a Colonel in the army medical service. He was due to retire on the 27th February 1985. But on account of year 16 year extension he remained in service until 28.2.87. A notice dated the 27th of January 1985 was served upon the tenants asking them to vacate on the expiry of the last day of February 1985. The action in ejectment was instituted on the 27th of March 1985.
3. The landlady's family now consists of herself, her husband and an unmarried daughter. Two daughters are already married. The landlady is presently in occupation of the first floor comprising one big and another small bed rooms, another small room used as kitchen, a bath and a privy in mazanine floor and a covered space. In the ground floor she is in occupation of a! room used as store, a covered space, a pump room. The tenants are in occupation of two rooms in the ground floor.
4. The landlady demands two bed rooms, one chamber for the doctor husband, one study room for the daughter, one drawing room, one room for married daughters, one dining room, kitchen, store bath and privy.
5. The learned Rent Controller by his order dated 4.7.89 in Ejectment suit No. 1 of 1985-Ev granted an order of eviction.
6. The Rent Controller's jurisdiction to entertain the application is challenged. The legislature, it is urged, has vested jurisdiction in the civil court only to entertain suits under the West Bengal Premises Tenancy Act hereinafter called Act. Departure has been made in chapter VIA of the Act to give speedy relief to a certain class of persons. Therefore the provisions contained in Section 29B, it is contended, must be strictly followed in order to invoke the jurisdiction. Reliance is placed upon a number of decisions to contend that the order shall be invalid if the Rent Controller passes the order without jurisdiction. I am in agreement with the proposition of law. Chapter VIA of the Act takes away the jurisdiction of the civil court and vests power in a Tribunal or an authority for speedy disposal of cases by means of a summary proceeding. The object of the provision is to ensure an accommodation in a house in which the persons contemplated in the provision is entitled to immediately on retirement so that those persons who had served the State or Government may not get stranded after retirement. Care has also be taken so that these persons may not evict the tenant long before their retirement. We should bear in mind these questions in order to appreciate the argument of the tenants. Section 29B(1) requires that an application for eviction has to be filed within a period of less than one year from the date of retirement of the husband of the landlady. The Rent Controller, it is contended, cannot entertain a case or rather assume jurisdiction if the application had been filed before that period. The due date of retirement of Colonel Hemendra Bikash was 28.2.85. In the affidavit in opposition at page-3 the landlady has stated that her husband was granted two extensions on one year extension term basis. The first extension was granted from 1.3.85 to 28.2.86. The suit was filed on 25.3.85. The case therefore squarely comes within the scope of Section 29B(1) of the Act. It is argued that by virtue of the second extension Colonel Hoare was in service till 28.2.87 and therefore the landlady's suit was premature. Extension is a matter of discretion of the employer and not a matter of right of the employee. In a different context Supreme Court so opined in S. N. Pallegar v. State of Mysore and State of Assam v. Premandha Barue . That apart, there is no controversy that the service of Colonel Hoare was extended on year to year basis. The suit was filed within a period of less than a year while the Colonel was enjoying the first extension. Colonel or as a matter of that his wife, the landlady cannot anticipate them that the authority would grant a second extension. The learned Rent Controller entertained an application in ejectment filed within a period of less than a year from the due date of retirement on 28.2.86. Once the Rent Controller lawfully assumes jurisdiction he cannot be divested of it by reason of the second extension. If I hold otherwise a petitioner has to file suits in succession so long as he will enjoy several extensions and all his applications will be liable to be dismissed on ground of prematurity excepting the last one. I am unable to reconcile myself with such proposition. I therefore hold that the learned Rent Controller validly assumed jurisdiction which was not divested by the second extension.
7. The second branch of argument of the petitioners is that the learned Rent Controller did not properly assess the requirement of the landlady. Referring to authorities it is argued that the requirement must exist even on the final date of disposal of the proceeding and the Court has to evaluate the requirement even by taking into account subsequent events. These propositions can hardly be challenged. The fact remains that the Rent Controller has taken notice of subsequent events, viz. the marriage of two daughters of the Colonel during the pendency of the proceeding.
8. In my opinion the petitioner cannot invite me to reassess the finding of fact of the learned Rent Controller as to requirement. Finding as to quantum of requirement is a finding of fact. A finding of fact cannot be assailed either under Section 29B(9) proviso of the West Bengal Premises Tenancy Act nor under Article 227 of the Constitution of India unless it is perverse, Section 29B(9) bars an appeal in clear terms. Therefore the matter which can be canvassed in appeal cannot be urged under Section 29B(9) proviso of the Act. In the Bench decision in A. K. Mukherjee v. Pradip Ranjan {1987(2) CLJ 229] it was held that the quantity of requirement, i.e. whether the landlord requires or not is a question of law vulnerable in second appeal. How much does he require is a question of fact which the appellant cannot challenge in second appeal. In Parimal v. Santosh (88 CWN 510) also it was held that the question of requirement is primarily a question of fact. While an appeal is barred by expressed terms under Section 29B(9) the petitioners cannot be heard to say that the assessment of requirement made by the Rent Controller may be reassessed by the High Court. A finding of/fact is impeachable if it is perverse. Perverse finding is that which is not sustainable on the evidence on record and to which no reasonable man would arrive. A finding is perverse if it is against evidence or without evidence. It is no argument of the petitioners that the finding of the Rent Controller is perverse. Similar limited is the scope of exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. It can by no means bs converted into an appellate jurisdiction. Supreme Court has cautioned on a number of occasions that the High Court will only see whether the courts and Tribunals are within their bounds. Therefore even if the conclusion of fact arrived at by the Rent Controller on the basis of evidence is erroneous, I regret to record, I have no jurisdiction to review it.
9. Despite my constraint the materials on record will not warrant an interference even if I overstep my limit to go into the facts. There is no dispute that there are two rooms in the ground floor in occupation of tenant and the corresponding two rooms on the first floor are being used by the landlady as bed rooms. Having regard to the size, location of other' accommodations it can be said that these four rooms can be used as bed rooms, drawing room, chamber of a doctor. It is urged that the married daughters not being the members of the family in view of the provision in Section 29B(2) explanation or rather Section 13(1) Clause (1) of the Act. The married daughters cannot be the members of the family. In Parimal v. Santosh (88 CWN 510) this Court held that in the facts of that case married daughter even can be a member of the family. I do not propose to enter into the controversy. Husband and wife require a bed room and the unmarried daughter requires another. It may be a luxuary on her part to ask for another room as a study room. In these days of acute housing problem such luxuary is impermissible however well accommodated her father had been during his service period. One room is needed as a drawing room of the family. Colonel Hoare requires a room for his chamber. One room is needed for being used as a dining room. These minimum requirements will need two rooms on the first floor used by the landlady as bed rooms, and corresponding two rooms on the ground floor in occupation of the tenants and another small room used as store in ground floor. Other accommodations available in the house are not suitable for use as! bed rooms, drawing room and chamber. In any event therefore two rooms in occupation of the tenants are needed by the landlady. It is argued that no case for a chamber for the landlady's husband has been either made out in the petition or in evidence. In page 8 of the plaint the need for a chamber has been pleaded. Landlady has supported her case in her evidence. In cross-examination the tenant Samarendra says that the husband of the landlady is a physician and he can practice in medicine after retirement. Therefore the argument on this score has no foundation. Other accommodations available in the house may be used as kitchen, store, bath, privy. Those accommodations are unsuitable as bed rooms, drawing room, chamber and dining room. The materials on record do not therefore warrant my interference in finding of fact of the Rent Controller.
10. It is submitted on behalf of the tenants that the learned Rent Controller did not consider the question of partial eviction which was mandatory. Since the Rent Controller found that the landlady needed the entire accommodation in the house he had no scope to consider the question. I have already found also that the landlady cannot do without the accomzmodation available with the tenants and so the question becomes immaterial.
11. The landlady had not proved element of urgency. This point has not been taken before the Rent Controller. So the tenants cannot be permitted to canvass this point here. Even they take the plea for the first time here still they cannot succeed on this score. The action was initiated in 1985. The proceeding is still pending in 1989. Provision in Chapter VIA is an emergency provision and therefore the legislature in its wisdom provided for summary trial. Since retirement Colonel Hoare is residing in an insufficient accommodation and cannot start practice as a Physician. If this does not constitute urgency I don't know what else will.
12. Law does not permit, it is urged, a petition for an amalgamated relief under Section 13(1) (f) and Section 13(1) (ff) of the Act. It is very much so as is evident from Section 29B(1) of the Act. As a matter of fact, the landlady has not asked for a relief under Section 13(1) (f) of the Act. What she meant to say in her petition is that once she gets possession on the ground of requirement for her own use and occupation she will refashion her house in her own way to make a comfortable living. Such a plea is very much available. We may refer to the decision in Jogesh Chandra v. Kironbala if any authority is needed. Further, the Rent Controller has granted no relief under Section 13(1)(f) of the Act. So the argument has no foundation,
13. There was an agreement for tenancy by means of a letter dated 3G. 12.69 addressed by the tenants to the landlord. The last clause provides that "the termination of tenancy will be governed by the law which will prevail in case of monthly tenants at the time". It is urged that the term of this agreement rules out the application of the special provision contained in Chapter VIA of the Act. The provision contained in Chapter VIA of the Act is very much a law which prevails, in the case of monthly tenants at the time. So the term of the agreement cannot exclude the application of the provision in Chapter VIA of the Act. In the next place, the provision in Chapter VIA was embodied in the Act jn 1976 while the agreement was entered into in 1969. That agreement cannot prevail over the special provision which came into force subsequently. It cannot be contended that by virtue of the agreement the landlady waived her special right under Chapter VIA which would come into existence in future. In any view of the matter therefore the argument is untenable.
14. The last argument of the tenants is that the learned Rent Controller over-looked new provision whereby the tenant should have been granted six months time to vacate. The litigation has taken years. As a matter of fact, about five months have passed since the learned Rent Controller passed the order. Nevertheless the tenants should be given time to find out an alternative accommodation for themselves. So they would vacate by the end of June in the following year.
15. Having regard to my observations above I find that the application of the tenants cannot succeed. It therefore fails. Let a copy of this order be sent down to the Rent Controller forthwith.