Mukul Gopal Mukherjee, J. - (1.) The petitioners challenge in the present proceedings a notice dated 4.12.79 issued by the Assistant Estates Manager, Calcutta Improvement Trust purportedly under Section 3(1) of the West Bengal Government Premises (Tenancy Regulation) Act 1976 asking the petitioner No. 1 to quit Flat No. 63 of Block No. A, C.I.T Scheme No. BIS at 7/1, Rajendra Mallck Street, Calcutta-7. It is the case of the petitioner that their father Mohonlal Sikaria was allotted the said Flat being No. 63 Block No. A at a rental of Rs. 80 per month according to English calendar month. On the death of their father Mohonlal Sikaria on January 9, 1963 the petitioners as his sons who used to live jointly with him had the tenancy transferred in the name of petitioner No. 1 since he was the Karla of the Joint Hindu family and rent receipts were issued in his name. The petitioner No. 1 used to carry on order supply business in Calcutta from 1963 till 1973 arid never went out of Calcutta and continued to live in the said flat. In or about 1974 the joint family consisting of the petitioners Nos. 1 and 2 acquired substantial interest in a joint stock company known as Hyderabad Tin Products Ltd. having its registered office at Hyderabad. Since then the petitioner no. 1 became the director of the said Company and he had to frequently go to Hyderabad in Connection with his business and had to stay there for several days in a month. The petitioner No. 1 continued to be the Karla of the joint Hindu family consisting of himself and his family and the family of the petitioner No. 2 The petitioner No. 2 also acquired substantial interest in another company known as Synthetic Plywood industries (P) Ltd having its factory at Vizianagram. The petitioner No. 2 became the director of the said company and he had to go to Vizanangram in connection with the said business and had to stay there for several days in a month. It is the case of the petitioners that they jointly and/or severally never owned any fiat at no. 107 Southern Avenue, Calcutta-29 or any where else in Calcutta except the flat in question. The said flat was never under lock and key for a continuous period of six mouths as alleged or at all. The said flat was in occupation of the petitioners and they had been living in tho said flat except for temporary periods when they said had to remain outside Calcutta in connection with their business. The petitioners paid all their outstanding bills and had also been paying electric bills for consumption of electricity in the said flit every month. The petitioners also received insurance premium notice from the Life Insurance Corporation of India and also personal letters and correspondences, share dividends etc at the said address. On or about April 1976 West Bengal Government Premises (Tenancy Regulation) Act 1976 came into force Section 3 of the said Act provides inter alia that the tenancy of any tenant of a Government premises can be terminated on service upon him of a notice of eviction and the tenancy would automatically terminate if the rents were in arrears or any building had been constructed and/or acquired by the tenant on or about December 10, 1979 the petitioners received notice dated December 4, 1979 pasted on the outer door of the flat purportedly issued by the respondent no. 3 under Section 3(1) of the West Bengal Government Premises (Tenancy Regulation Act 1976 issued in the name of the petitioner no. 1. Thereafter on January 4, 1980 the petitioner no. 1 received another notice under Section 3(1) of the West Bengal Government Premises (Tenancy Regulation) Act 1976 under registered post with acknowledgement due. In both the notices, tenancy of the petitioner no. 1 in respect of the said flat was sought to he terminated on the ground of keeping the said flat under lock and key for the preceding six months and because of his owning a flat at no 107 Southern Avenue, Calcutta-29 being flat no 8A. The petitioners were there after directed to deliver possession of the said premises within a month from the date of service of notice. It was inter alia mentioned in the said notice that on the failure of the petitioner no. 1 to comply with the said notice, the possession of the said flat would be taken by evicting him under Section 4(2) of the West Bengal Government Premises (Tenancy Regulation) Act 1976. After receipt of the said notices, the petitioners personally tendered rent for subsequent months but the respondent no. 1 refused to accept the same. Despite reply of the petitioner no. 1 dated January 2, 1980 to the put ported notice under Section 3(1) of the West Bengal Government Premises (Tenancy Regulation) Act 1976 it was withdrawn and/or cancelled. On February 8, 1980 the petitioners moved an application under Article 226 of the Constitution of India inter aha challenging the provisions of the said Act as ulna vires the Constitution of India asking the respondents nos. 1 to 3 not to give effect or further effect to the impugned notice dated December 4, 19/9. Copy of the previous writ application is annexure "C" to the present writ application. The said application having been moved before the Hon'ble Mr. Justice D.K. Sen, his lordship issued a rule Nisi calling upon the respondents to show cause as to way a writ in the nature of Mandamus should not issue as referred to in prayer (a) of the petition. His lordship was further pleased to issue an interim order restraining the respondent no. 3 from taking further steps under the impugned notice dated 4.12.79. The interim order was thereafter extended from time to time. In the said application, which was registered as Civil Rule No. 1151 (W) of 1980, the respondents filed affidavit in opposition and the petitioners also filed their reply thereto. The respondents filed a supplementary affidavit and directions were given to the petitioners to file further affidavit-in reply. The said application was appearing before the Hon'ble Mr. Justice T.K. Basu in the early part of 1984 and was being adjourned from time to time. Section 3 of the West Bengal Government Premises (Tenancy Regulation) Act 1976 was declared ultra vires the Constitution of India by Che Hon'ble Mr. Justice D.K. Sen in CO. 16189 to 16391(W) of 1981 in the case of A.K. Mukheriee v. Sure of West Bengal which was reported in AIR 1983 NOC 189 . In view of the fact that such a decision was made, the petitioners advised their learned Advocate not to press the rule obtained by the petitioners and the same was dismissed for non-prosecution which was recorded by an order dated May 2, 1984 passed by T.K. Basu, J. After the dismissal of Civil Rule no. 115l(W)/80, the petitioners came to know that the respondents were going to take steps for taking possession of the flat in terms of the provisions of Section 4(2) of the said Act They came to know that the respondent no I had already sent intimation to the respondent no. 5 to provide police force for taking possession of the flat. The petitioners thereafter moved for the present rule praying inter alia for a writ in the nature of Mandamus directing the respondents, their agents, subordinates and servants to forbear from evicting the petitioners or directing the petitioners to give vacant possession of the said flat and also for a mil in the nature of Certiorari directing the respondents to certify the records to this Hon'ble Court leading to issuance of notice dated 4.12.79 so that conscionable justice may be done by setting aside the same.
(2.) It shall not be out of place to mention in this context that Hon'ble Mr. Justice Chittatosh Mookerjee and the Hon'ble Mr. Justice Shamsuddin Ahmed by a judgement dated 6.5.85 in F.M.A.T. 1444 of 1983 set aside the decision of D. K Sen, J in Civil Revision no 16390(W)/81, C.R. 16389(W) to 16391(W)/81 were covered by a single judgement wherein it was held inter alia by their lordships that Section 3 of the said Act did not give unguided discretion to the prescribed authority. By a separate judgement delivered by the Division Bench on 3.5.85 in Civil Rule No. 16393(W) & 16394(W)/84 and in several other rules, their Lordships upheld the validity of the West Bengal Government Premises (Regulation of Occupancy) Act 1984.
(3.) In the West Bengal Government Premises (Tenancy Regulation) Amendment Act 1980 there was hi amendment to Section 3 of the West Bengal Act XIX of 1976 and it was specifically incorporated in the statute that if a tenant subsequently builds a house of his own, he would thereby be liable to be evicted. In the West Bengal Government Premises (Tenancy Regulation) Second Amendment Act 1980 there was a further amendment to the effect that if a person subsequently built a house or acquired by purchase, gift, inheritance, lease, exchange or other wise 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, he would be dis entitled to continue as a tenant. There was yet a further amendment by bringing Section 3A of the said Act, whereby it was stipulated inter aha that the tenancy in respect of Government premises shall be deemed to be void where on the date of allotment of such Government premises, the tenant is or had been the owner of any 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.;