Venkataramiah, J. - (1.) 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 appeal against the judgment dated January 18, 1983 of the learned single Judge of the Calcutta High Court in C. R. No. 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' 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 as follows:"(7). You should use the premises exclusively for the purpose of residence of yourself and the members of your family and for no other purpose whatsoever." (Emphasis added)
(2.) It is stated that in the year 1958 the members of the family of Respondent No. 1, 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. 1 along with his wife shifted to another flat which he had taken 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. 1 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 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. 1 calling upon him to quit and deliver possession of the flat on the ground that the tenancy had automatically terminated as provided in section 3(2) of the Act as he had ceased to occupy it and that clause (7) of the agreement of tenancy had been violated. Aggrieved by the said notice Respondent No. 1 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. 1, the tenant was not living therein. The writ petition came up 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. 1 filed an appeal before the Division Bench of the High Court. The Division Bench allowed the appeal and made the rule absolute holding that since Respondent No. 2, the elder brother of Respondent No. 1 was a member of the family of respondent No. 1, 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 and a member of his family continued to reside in the flat. This appeal by special leave is filed against the judgment of the Division Bench of the High Court of Calcutta.
(3.) It may be mentioned here that after the judgment of the 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 not withstanding the appeal of Respondent No. 1 being allowed by the Division Bench of High Court by virtue of an interim order passed by this Court. Even now the flat is in the possession of the Government of West Bengal.;