STATE OF WEST BENGAL & ANR.versusSARAL KUMAR SEN GUPTA & ANR.

                                                                     515

                                                                            A
                              STATE OF WEST BENGAL & ANR.
                                          v.
                             SAKAL KOMAR SEN GUPTA & ANR.

                                    APRIL 15, 1986
                                                                            B
                       [E.S. VENKATARAMIAH AND M.P. THAKKAR, JJ.]

  ~ ..,_         West Bengal Goverrnoont 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.                                      c
             Respondent No. I - an employee of the State Government
     ywas 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.l and the members of his family. At that time the family of       D
       the Respondent No. I consisted of himself, his elder brother
       and three unmarried sisters. In the year 1959, Respondent No.I
       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.
                                                                            E
                  Prescribed Authority under the West Bengal
                 The
      Government Premises (Tenancy Regulation) Act, 1976 issued a
      notice to Respondent No.I 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            F
    ~ 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.I himself wa~ not living          G
           therein. The petition was dismissed by a Single Judge,

-1 >-'1          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.                   H
    516                    SUPREME COURT REPORTS     [1986 J 2 s.c.R.

A
            Allowing the appeal by the State to this Court,

          HELD: 1. Responde~t 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-Bl
B
          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.TCould
    stay himself along with his family members and" not by
    respondent No. l or the e beTS of his faaf.ly. As long as
    respondent No. 1 is residing in the premises he could accom-
c   modate 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'f
    members constituting a separate unit cannot in their own right
    as a separate unit continue to get the same without violatinsr
    cl.(7) of the agreement of tenancy. It is the condition of the
D
    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. LC. Bbasin, [1982] 3 s.C.R. 670,~
    distinguished.
E
           3. To meet the growing demand for Government premises
    the State Legislature had to amend the Act by the West Bengal
    Act XI.VI of 1980, by introducing cl. (ia) in su1'-s. (2) of s.3
    of the Act which provided that a tenancy in respect of a ~
F
    Government Premises would stand automatically terminated
    without any notice to quit where the tenant had subsequently -t;
    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]
G
            CIVIL APPELLATE JURISDICTION   Civil Appeal No. 9963 of
    1983.                                                               )'---   I-


          From the Judgment and Order dated 3rd August 1983 of the
    Clacutta High Court in First Misc. Appeal (Mandanlls) Tender
H
    No. 168 of 1983.
               STATE v. S.K. SENGUPTA [VENKATARAMIAH, J,]        517

                                                                       A
             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                   B

           VENKATARAKIAH, 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         c
), appeal against the judgment dated January 18, 1983 of the
 ' learned Single Judge of the Calcutta High Court in C.R. No.
 y 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'      D
    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
ii- as follows
                                                                       E
               "(7) You should use the premises exclusively for
               ~he purpose of  residence of yourself and the
               members of your family and for no other purpose
               whatsover."

                                                   (emphasis added)    F




r        It is stated that in the year 1958 the members of the
   family of Respondent No.I, 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.l
   along with his wife shifted to another flat which he had taken
                                                                       G
   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. I 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              H
    518                  SUPREME COURT REPORTS     [1986] 2 s.c.R.

A   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.l calling upon him to quit and deliver posses-
    sion of the flat on the ground that the tenancy had automati-
    cally terminated as provided in section 3(2) of the Act as he
    had ceased to occupy it and that clause (7) of the agreement
B   of tenancy had been violated. Aggrieved by the said notice
    Respondent No.l 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.l,
    the tenant was not living therein. The writ petition came up
c   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. l filed an "(
    ~ppeal before the Division Bench of the High Court. The Divi-
    sion Bench allowed the appeal and made the rule absolute hold-
    ing that since Respondent No.2, the elder brother of
D   Respondent No.l was a member of the family of Respondent No.l,
    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 ·
E   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

F
    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.I being allowed by
    the Division Bench of High Court by virtue of an interim order
                                                                    .
                                                                     1
    passed by this Court. Even now the flat is in the possession
    of the Government of West Bengal.
G        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 }Ii
    a Governuent 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
H
                STATE v. S.K. SENGUPTA   [VENKATARAMIAH, J.]     519


    ~ three consecutive D)nths. 'll\e provisos to section 3(2) of the  A
      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. 'll\e short question which arises for consideration
      in this case is whether Respondent No.1 who was the tenant of B
      the Government premises in question had 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.I 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 prtor to the        c
      date on which the notice was issued to him calling upon him to
    y 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.I had been
      residing in the premises, the condition contained in clause
      (7) of the agreement of tenancy had not been violated. It was D
      of the view that even though Respondent No.I 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. I. 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 E

-     stipulates is that the premises could be used by Respondent
      No.I and the members of his family, that is to say Respondent
  "+ No. I could stay himself along with his family members and not
      by Respondent No.1 or the members of his fa•lly. As long as




,
      Respondent No. I is residing in the premises he could
      acconnnodate along with him any other member of his family in F
      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 violat-
      ing clause (7) of the agreement of tenancy. lt is the condi-
      tion of the lease that the tenant in whose. favour the premises G
      are leased should reside in the premises let to him and not in
'WI! soire other premises during the currency of the lease.
            The learned counsel for the 1st Respondent drew our
       attention to the decision of this Court in Baldev Sahai Bangia
                                                                        H
     520                   SUPREME COURT REPORTS       (1986] 2 s.c.R.

A
     v. lt.C. Bhasin, (1982] 3 S.C.R. 670 and contended that this I.-
     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
B,   provided that where the premises were let for use as a
     residence and neither the tenant !!££ any member of his family
     had been residing for a period of six ta>nth i11111ediately 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 1st Respondent since the language of section
c    14(l)(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'1
     capable of the construction that if either the tenant or a
     member of his family was residing in the premises section
D    14(l)(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 ~ the members of his family in the
     sense that the tenant stays somewhere else and his other~
E    family members stay in the leased premises. The decision
     relied on is, therefore, clearly distinguishable.

          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 ,..
F    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
G    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
H    referred to the above clause only to show the magnitude of the
                 STATE v. S.K. SENGUPTA (VENKATARAMIAH, J,]         521

                                                                           A
    >--}shortage of housing acconunodation. In any view of the matter
       it has to be held that Respondent No. I violated clause (7) of
        the agree!D!!nt of tenancy when he ceased to occupy the premises
       himself, The judgm!!nt of the Division Bench of the High Court
       is, therefore, liable to be set aside. It is accordingly set
       aside. The judgm!!nt of the learned Single Judge is restored.       B
            The appeal ls accordingly allowed. No costs.



       A.P,J.                                          Appeal allowed.
                                                                           c




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