P K GANGULY Vs. REKHA DEBI

JUDGEMENT

(1.) This rule was obtained by the landlord the petitioner in this Court on an application under Article 227 of the Constitution against an order dated May, 31, 1973 passed by the Chief Judge, Small Causes Court, Calcutta as the appellate authority under the Calcutta Thika Tenancy Act, 1949 in T. T. Appeal No. 1 of 1971. The facts are that the landlord on March 4, 1970 initiated proceedings for ejectment of the thika tenants the opposite parties before us under Section 5 of the Act in respect of a plot of land being portion of premises No. 39-B, Creek Row, Calcutta, on service of due notice as required under Section 4. The ground for ejectment was that the landlord, who had no other house or any other land in the city, required the said land for construction of his residential house as he was shortly going to retire from Government service and intended to reside therein with his family near his relatives and in a quiet surrounding in view of his heart disease and also for education of his children. The proceeding was registered as T. T. Case No. 2 of 1970 before the learned Judge Third Bench, Small Causes Court, Calcutta as the Thika Controller and was contested by the opposite parties. On a trial on evidence the learned Judge held that the notice was valid, legal and sufficient and was duly served. It was also found that the landlord did not own any house in Calcutta so that provisions of Sub-section (2) of Section 3 were not applicable. It was further found that the landlord bona fide required the disputed land for his own occupation to build his residential house thereon. The Controller further found that the tenants did not signify their consent to eviction from a part of the holding and from Ext. 9 a letter from the Corporation, and from plans it was clear that the appellant's requirement could not be substantially satisfied by ejecting the tenants from a part of the holding or that the proposed building could be constructed without dismantling the existing constructions of the tenants. The application of the landlord was accordingly allowed by order dated December 19, 1970 and the landlord was made entitled to recover possession on payment of compensation as would be agreed or determined by the Controller.

(2.) The tenants preferred an appeal therefrom which was dismissed by the Chief Judge as the appellate authority by order dated August 30, 1971 and the judgment and order of the Controller was affirmed.

(3.) Against the appellate order the tenants moved this Court under Article 227 of the Constitution and obtained a rule being C. R. No. 3197 of 1971 which was made absolute on June 7, 1972 to the extent indicated in the judgment. It was held that the notice of the ejectment was valid, legal and sufficient and was duly served. It was also held that the landlord's requirement for own occupation could be secured by building on the land and discontinuing letting out to thika tenants. In view, however, of the allegation that after the death of his father who had a residential house at Calcutta, there was a change of circumstances disentitling the landlord the relief prayed in this proceeding, the Court felt that the question should be decided by the appellate authority in the light of the provisions in the Will left by the father. As to the question of partial eviction, the Court found that the appellate authority did not consider the matter at all and this was also to be considered by the said authority as the question of own use and occupation depends on the decision on partial eviction. The Court set aside the judgment and order of the appellate authority with following directions: