- (1.) The instant application under Article 227 of the Constitution of India has been filed by the petitioner tenants against the Order dated 4.8.93 passed by the Additional House Rent Controller, Serampore in H.R.C. Case No.92 of 1993 thereby allowing the application of the owner landlord O.P. No. 1 under Section 293 of the West Bengal Premises Tenancy Act (hereinafter referred to as the Act). The aforesaid case was brought by the present O.P. No. 1 against the present petitioners 1 and 2 and O.P. No. 2 alleging them to be the tenants in respect of the disputed premises. By the impugned order the Learned Additional House Rent Controller allowed the case and directed the present petitioner No. 1 to vacate the suit premises by 20.8.93 & to be report compliance by 21.8.93. It has been urged before me by Shri B. Bhattacharji the Ld. Advocate appearing for the petitioner that the impugned order is patently illegal an violating of the principles of natural justice and that it has been passed without giving any opportunity of hearing to the petitioners as required under the Law. It has also been submitted by Shri Bhattacharji that the entire proceeding is vitiated by flagrant error in procedure, lack of jurisdiction resulting in manifest injustice. It has been submitted by Shri Bhattacharji that at the time of filing of the instant case under Section 2.9B of the Act the landlord O.P. No. 1 did not fulfil the conditions as prescribed under the aforesaid Section so as to entitle her to get the relief thereunder, in order to appreciate the submissions of Shri Bhattacharji it would be helpful to quote the relevant provisions of Section 29B of the Act which runs as follows:- "No Civil Court shall entertain any application by a landlord being a Government employee, and who being in occupation of any residential premises allotted to him by his employer, is required by, or in pursuance of, an order made by such employer, to vacate such residential accommodation, or in default to incur certain obligations on the ground that he owns a residential accommodation either in his own name or in the name of his wife or dependent child at or near the place where he is posted for the time being..................... .....................for the recovery of possession of any premises on the ground specified in clause (ff) of sub-Section (1) of Section 13 but such application shall be dealt with by the Controller in accordance with the procedure specified in this section".
(2.) In her petition before the Rent Controller under Section 293 of the Act the landlord O.P. No. 1 alleged herself to be the owner of the disputed premises in respect of which the present petitioners and O.P. No. 2 were her tenants. Undisputediy the O.P. No. 1 is a Government employee and was in occupation of a residential premises allotted by the Government in a rental Housing Estate, Mahesh, District Hooghly and also was the owner of the house at 54-N.S. Road, Serampore. In order to attract of the provisions of Section 29B the landlord at the time of filing of his case must be a Government employee and he while in occupation of any residential premises allotted to him by his employer is required by, or in pursuance of an Order made by such employer, to vacate such residential accommodation, or in default to incur certain obligations on the ground that be owns a residential accommodation either in his own name or in the name of his wife or dependent child at or near the place where he is posted for the time being. It has been argued by the Ld. Advocate appearing for the petitioners that at the time of filing of the case tinder Sec. 29-B the O P.No.1 had already vacated the Government flat and that as such her petition was liable to be dismissed inasmuch as she did net fulfil the second condition. In other words Shri Bhattacharji has submitted that in order to attract the provisions of Section 293 of the Act the landlord petitioner at the time of filing of the ease before the Rent Controller must be a Government servant and must be in occupation of the residential premises allotted by the Government. He has referred to a Division Bench decision of the Calcutta High Court reported in (J) 1984(2) Calcutta High Court Notes at page 57. I have gone through the said reported decision but it has nowhere been held there that in order to get the relief under Section 29B of the Act, the landlord petitioner must be in occupation of the residential premises allotted by the Government at the time of his filing the application. What has been held there is as follows:- "We are of the opinion that in order to attract the provision the Government employee must be (i) in occupation of the residential premises allotted by the Government (hereinafter referred to as the Government premises) and (ii) he must be asked either to vacate or in default, to incur certain obligations on the ground that he himself owns a residential accommodation. We think that the second element as aforesaid is an important factor. The necessary implication of the second element is that but for his owning his own residential accommodation he would not have been asked to vacate the Government premises and he would have been allowed to occupy and enjoy the same."
(3.) He has also referred to a decision of the Calcutta High Court reported in AIR 1986 at page 273. This reported case also does not appear to support the contention of Shri Bhattacharji. It has been held there as follows:- "In respect of a landlord who is a Government employee Section 21B prescribed two conditions. He should be in occupation of residential premises allotted to him by his employer. Secondly, that he is required to vacate it on the ground that be owns a residential accommodation in his place of posting. The first condition refers to 'residential premises.' The second condition is also in relation to a residential accommodation.";