RAKHAL CHANDRA SAHA Vs. SUKUMAR DEB
HIGH COURT OF CALCUTTA
RAKHAL CHANDRA SAHA
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(1.)THIS is an application for a certificate for appeal to the supreme Court under clauses (a), (b) and (c) of Article 133 (1) of the Constitution.
(2.)THE petitioner was a tenant in respect of premises No. 56, Southern avenue, Calcutta, at a monthly rent of rs. 100/ -. The said premises was purchased by the Opposite Party on the 27th of July, 1957. On the 9th of July 1958 the Opposite Party instituted a suit, being Title Suit No. 577 of 1958 in the fifth Court of the Munsiff at alipore for eviction of the petitioner on the ground of reasonable requirement. The suit was decreed by the Trial Court on July 18, 1866 and the said decree was ultimately affirmed by this Court in S. A. No. 1572 of 1967 on March 7, 1969. The Tenant defendant was, however, granted time till the end of March 1970 to vacate the disputed premises. In the mean time the West Bengal premises Tenancy (Amendment) Act 1970, came into force on the 6th of March, 1970. By the said Amending Act a new Section, namely, section 17e was introduced in the parent Act. The relevant portion of the said section run as follows:
"17e. (1) Where before the commencement of the West Bengal Premises Tenancy (Second Amendment)Act 1969, a decree for the recovery of possession of any premises was passed in a Suit which had been brought by a landlord, who had acquired his interest in. such premises by transfer, before the expiration of a period of three years, from the date of his acquisition of such interest only on one or more of the grounds mentioned in Clause (f) of sub-section (1) of Section 13 as it was inforce before such commencement but the possession of such premises had not been recovered from the tenant by the execution of the decree, the tenant may, within a period of sixty days from the date of commencement of the West bengal Premises Tenancy (Amendment)Act 1970 make an application to the court which passed the decree to set aside the decree".
Before the commencement of the west Bengal Premises Tenancy (Second amendment) Act 1969, Clause (f) of sub-section (1) of Section 13 of the act stood as follows :
"13. Protection of tenant against eviction (1) Notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the following grounds, namely (f) Where the premises are reasonably required by the landlord either for purpose of building or rebuilding or for making thereto substantial addition or alteration or for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held;. ".
(3.)TAKING advantage of this new provision the tenant petitioner filed an application under section 17e of the act. The said application was allowed by the trial court and the ejectment decree which was obtained by the landlord-opposite party was set aside on july 8, 1970. Against the said order the landlord opposite party came up to this Court in revision and obtained civil Rule No. 2374 of 1970. The said rule came up for final hearing before us on the 29th of March, 1972, and it was made absolute and the order of the trial court was set aside on the ground that, following the Division bench decision reported in (1) Sailendra nath Ghosal v. Sm. Ena Dutta, 75 c. W. N. 331 we had already held in Civil, rule No. 1943, of 1971 (2) Amal chandra Chatterjee v. Promode Kumar banerjee (Since reported in 76 C. W. N 743) that section 17e of the West bengal Premises Tenancy Act was ultra vires Article 19 (1) (f) of the Constitution in so far as it is retrospective in operation. The petitioner has filed the present application for a certificate for appeal to the Supreme Court against the said Order.
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