# STATE OF WEST BENGAL & ANR v. SAKAL KOMAR SEN GUPTA & ANR

- **Citation:** [1986] 2 S.C.R. 515
- **Court:** Supreme Court of India
- **Decided:** 1986-04-15
- **Case number:** Civil Appeal No. 9963 of 1983
- **Bench:** E.S. Venkataramiah, M.P. Thakkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-west-bengal-anr-v-sakal-komar-sen-gupta-anr-9400
- **Pages:** 7

## Headnote

~ ..,_
West Bengal Goverrnoont
Premises
(Teanancy Regulation)
Act, 1976 -
S.3(2) -
Agreement of tenancy -
Stipulation -
'Premises to be used exclusively by the tenant and members of
his family' -
Tenant ceasing to occupy premises himself -
Whether liable to eviction.
Respondent No. I -
an employee of the State Government
ywas allotted on lease a two-roomed flat. Clause (7) of the
agreement of tenancy provided that the premises shall be used
exclusively for the purpose of the residence of Respondent
No.l and the members of his family. At that time the family of
the Respondent No. I consisted of himself, his elder brother
and three unmarried sisters. In the year 1959, Respondent No.I
got married and alongwith his wife shifted to another flat
taken on lease. His elder brother and two unmarried sisters
~continued to be in occupation of the flat.
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The
Prescribed
Authority
under
the
West
Bengal
Government Premises (Tenancy Regulation) Act, 1976 issued a
notice to Respondent No.I calling upon him to quit and deliver
possession of the flat on the ground that the tenancy had
~automatically terminated as provided in s.3(2) of the Act
because he had ceased to occupy it and that cl. (7) of the
F
~ agreement of the tenancy had been violated.
Respondent No. 1 filed a Writ Petition under Article 226
alleging that since Respondent
No.2 was his elder brother he
was a member of his family and he was entitled to live in the
flat even though Respondent No.I himself
wa~ not living
G
therein. The petition was dismissed by a Single Judge,
-1 >-'1
In appeal, the Division Bench held that cl. (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, and allowed the appeal.
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516
SUPREME COURT REPORTS
[1986 J 2 s.c.R.
Allowing the appeal by the State to this Court,
HELD:
1.
Responde~t No.
1 violated cl.(7) of the
agreement of tenancy when he ceased to occupy the premises
himself. The judgment of the Division Bench is set aside and
that of the Single Judge is restored. [521 A-Bl
2. What cl.(7) of the agreement of tenancy stipulates is
that the premises can be used by respondent No. 1 and the~ ~
members of his family, that is to say, respondent No.TCould
stay himself along with his family members
and" not by
respondent No. l or the
e beTS of his faaf.ly. As long as
respondent No. 1 is residing in the premises he could accommodate along with him any other member of his family in the~
premises, But when he ceases to reside in the premises and
occupies other premises for residence as a separate unit other'f
members constituting a separate unit cannot in their own right
as a separate unit continue to get the same without violatinsr
cl.(7) of the agreement of tenancy. It is the condition of the
lease that the tenant in whose favour the premises are leased
should reside in the premises let to him and not in some other
premises during the currency of the lease. [519 E-G]
Baldev Sahai Bangia v. LC. Bbasin, [1982] 3 s.C.R. 670,~
distinguished.
3. To meet the growing demand for Government premises
the State Legislature had to amend the Act by the West Bengal
Act XI.VI of 1980, by introducing cl. (ia) in su1'-s. (2) of s.3
of the Act which provided that a tenancy in respect of a ~
Government
Premises would
stand automatically terminated
without any notice to quit where the tenant had subsequently -t;
built a house or acquired (by purchase, gift, inheritance,
lease, exchange or otherwise) 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.
[520 F-H]

## Text

515
STATE OF WEST BENGAL & ANR.
v.
SAKAL KOMAR SEN GUPTA & ANR.
APRIL 15, 1986
[E.S. VENKATARAMIAH AND M.P. THAKKAR, JJ.]
~ ..,_
West Bengal Goverrnoont
Premises
(Teanancy Regulation)
Act, 1976 -
S.3(2) -
Agreement of tenancy -
Stipulation -
'Premises to be used exclusively by the tenant and members of
his family' -
Tenant ceasing to occupy premises himself -
Whether liable to eviction.
Respondent No. I -
an employee of the State Government
ywas allotted on lease a two-roomed flat. Clause (7) of the
agreement of tenancy provided that the premises shall be used
exclusively for the purpose of the residence of Respondent
No.l and the members of his family. At that time the family of
the Respondent No. I consisted of himself, his elder brother
and three unmarried sisters. In the year 1959, Respondent No.I
got married and alongwith his wife shifted to another flat
taken on lease. His elder brother and two unmarried sisters
~continued to be in occupation of the flat.
A
B
c
D
E
The
Prescribed
Authority
under
the
West
Bengal
Government Premises (Tenancy Regulation) Act, 1976 issued a
notice to Respondent No.I calling upon him to quit and deliver
possession of the flat on the ground that the tenancy had
~automatically terminated as provided in s.3(2) of the Act
because he had ceased to occupy it and that cl. (7) of the
F
~ agreement of the tenancy had been violated.
Respondent No. 1 filed a Writ Petition under Article 226
alleging that since Respondent
No.2 was his elder brother he
was a member of his family and he was entitled to live in the
flat even though Respondent No.I himself
wa~ not living
G
therein. The petition was dismissed by a Single Judge,
-1 >-'1
In appeal, the Division Bench held that cl. (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, and allowed the appeal.
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516
SUPREME COURT REPORTS
[1986 J 2 s.c.R.
Allowing the appeal by the State to this Court,
HELD:
1.
Responde~t No.
1 violated cl.(7) of the
agreement of tenancy when he ceased to occupy the premises
himself. The judgment of the Division Bench is set aside and
that of the Single Judge is restored. [521 A-Bl
2. What cl.(7) of the agreement of tenancy stipulates is
that the premises can be used by respondent No. 1 and the~ ~
members of his family, that is to say, respondent No.TCould
stay himself along with his family members
and" not by
respondent No. l or the
e beTS of his faaf.ly. As long as
respondent No. 1 is residing in the premises he could accommodate along with him any other member of his family in the~
premises, But when he ceases to reside in the premises and
occupies other premises for residence as a separate unit other'f
members constituting a separate unit cannot in their own right
as a separate unit continue to get the same without violatinsr
cl.(7) of the agreement of tenancy. It is the condition of the
lease that the tenant in whose favour the premises are leased
should reside in the premises let to him and not in some other
premises during the currency of the lease. [519 E-G]
Baldev Sahai Bangia v. LC. Bbasin, [1982] 3 s.C.R. 670,~
distinguished.
3. To meet the growing demand for Government premises
the State Legislature had to amend the Act by the West Bengal
Act XI.VI of 1980, by introducing cl. (ia) in su1'-s. (2) of s.3
of the Act which provided that a tenancy in respect of a ~
Government
Premises would
stand automatically terminated
without any notice to quit where the tenant had subsequently -t;
built a house or acquired (by purchase, gift, inheritance,
lease, exchange or otherwise) 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.
[520 F-H]
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 9963 of
1983.
)'---
IFrom the Judgment and Order dated 3rd August 1983 of the
Clacutta High Court in First Misc. Appeal (Mandanlls) Tender
No. 168 of 1983.
STATE v. S.K. SENGUPTA
[VENKATARAMIAH, J,]
517
N.N. Gooptu, D.P. Mukherjee and G,S. Chatterjee for the
...,., Appellants.
Shankar Ghose and Rathin Das for the Respondents.
The Judgment of the Court was delivered by
VENKATARAKIAH, J, 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.
y 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
ii- as follows
r
"(7) You should use the premises exclusively for
~he purpose of residence of yourself and the
members of your family and for no other purpose
whatsover."
(emphasis added)
It is stated that in the year 1958 the members of the
family of Respondent No.I, 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.l
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. I 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
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518
SUPREME COURT REPORTS
[1986] 2 s.c.R.
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.l 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.l 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.l,
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. l filed an "(
~ppeal 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.l was a member of the family of Respondent No.l,
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 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.
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 1
notwithstanding the appeal of Respondent No.I 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.
The building in question belongs to the State Government
and the incidents of its lease are governed by the Act.
Section 3(2) of the Act provides that a tenancy in respect of }I
a Governuent premises shall stand automatically terminated
'-
without any notice to quit, where the tenant has violated the
terms of the lease or made default in payment of rent for
-
STATE v. S.K. SENGUPTA
[VENKATARAMIAH, J.]
519
~ three consecutive D)nths. 'll\e provisos to section 3(2) of the
Act are not relevant for the purposes of this case. The
Prescribed Authority appointed under the Act is entitled to
recover possession of any Government premises from a tenant
under section 3(2) of the Act on the violation of the terms of
the lease. 'll\e short question which arises for consideration
in this case is whether Respondent No.1 who was the tenant of
the Government premises in question had violated the terms of
.~ ~the lease. We have already set out above clause (7) of the
agreement of tenancy. It provides that the premises can be
used
exclusively for
the purpose
of
the residence of
Respondent No.I along with the members of his family and for
no other purpose whatsoever. Admittedly, Respondent
No.1 has
~ not been residing in the premises from a date prtor to the
date on which the notice was issued to him calling upon him to
y quit and deliver possession of the premises. The Division
Bench of the High Court was of the view that since Santosh
Kumar Sen Gupta, the elder brother of Respondent No.I had been
residing in the premises, the condition contained in clause
(7) of the agreement of tenancy had not been violated. It was
of the view that even though Respondent No.I had himself along
with his wife shifted to some other flat or premises the
building could be used by his brother who could be said to be
~a member of the family of Respondent No. I. With great respect
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we cannot agree with the view taken by the Division Bench of
the High Court. What clause (7) of the agreement of tenancy E
stipulates is that the premises could be used by Respondent
No.I and the members of his family, that is to say Respondent
"+ No. I could stay himself along with his family members and not
,
by Respondent No.1 or the members of his fa•lly. As long as
Respondent
No. I is residing in the premises he
could
acconnnodate along with him any other member of his family in F
the premises. But when he ceases to reside in the premises and
occupies other premises for residence as a separate unit other
members constituting a separate unit cannot in their own right
as a separate unit continue to occupy the same without violating clause (7) of the agreement of tenancy. lt is the condition of the lease that the tenant in whose. favour the premises G
are leased should reside in the premises let to him and not in
'WI! soire other premises during the currency of the lease.
The learned counsel for the 1st Respondent drew our
attention to the decision of this Court in Baldev Sahai Bangia
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520
SUPREME COURT REPORTS
(1986] 2 s.c.R.
v. lt.C. Bhasin, (1982] 3 S.C.R. 670 and contended that this I.-
Court had recognised the right of the members of the family of
a tenant to reside in a building taken on lease even after the
tenant had left the premises. We have gone through that
decision. In that case this Court was concerned with clause
(d) of section 14(1) of the Delhi Rent Control Act, 1958 which
provided that where the premises were let for use as a
residence and neither the tenant !!££ any member of his family
had been residing for a period of six ta>nth i11111ediately before~ -
the date of the filing of the application, the landlord could
apply for eviction of the tenant, This decision is of no
assistance to the 1st Respondent since the language of section
14(l)(d) of the Delhi Rent Control Act, 1958 is different from
the language in clause ( 7) of the agreement of tenancy in the _,.(
case before us. The expression 'neither the tenant nor any
·
member of his family' in the Delhi Rent Control Act, 1958 was'1
capable of the construction that if either the tenant or a
member of his family
was residing in the premises section
14(l)(d) of that Act was not attracted. But in the present
case the term contained in clause (7) of the agreement of
tenancy required that the premises could be used for the
residence of the tenant and (along with him) the members of
the family and not tenant ~ the members of his family in the
sense that the tenant stays somewhere else and his
other~
family members stay in the leased premises. The decision
relied on is, therefore, clearly distinguishable.
It has to be borne in mind that the buildings owned by
the Government are limited in number and there is a great
demand for allotment of Government premises. The Government ,..
cannot afford to allow one family to have the privilege of
occupying two buildings. It is in order to meet the growing
demand for the Government premises the State Legislature had
to amend
the Act by the West Bengal Act XLVI of 1980
introducing clause (ia) in sub-section (2) of section 3 of the
Act which provided that a tenancy in respect of a Government
premises would stand automatically terminated without any
notice to quit where the tenant had subsequently built a house
or acquired (by purchase, gift, inheritance, lease, exchange
or otherwise) 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. We have
referred to the above clause only to show the magnitude of the
'
STATE v. S.K. SENGUPTA
(VENKATARAMIAH, J,]
521
>--}shortage of housing acconunodation. In any view of the matter
it has to be held that Respondent No. I violated clause (7) of
the agree!D!!nt of tenancy when he ceased to occupy the premises
himself, The judgm!!nt of the Division Bench of the High Court
is, therefore, liable to be set aside. It is accordingly set
aside. The judgm!!nt of the learned Single Judge is restored.
The appeal ls accordingly allowed. No costs.
A.P,J.
Appeal allowed.
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