Full Judgment Text
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CASE NO.:
Appeal (civil) 22 of 2007
PETITIONER:
M/s Associated Indem Mechanical Pvt. Ltd.
RESPONDENT:
West Bengal Small Scale Industrial Development Corporation Ltd. & Ors.
DATE OF JUDGMENT: 05/01/2007
BENCH:
G.P. Mathur & A.K. Mathur
JUDGMENT:
J U D G M E N T
(Arising out of Special Leave Petition (Civil) No.2863 of 2006)
G. P. MATHUR, J.
1. Leave granted.
2. This appeal, by special leave, has been preferred against the
judgment and order 13.12.2005 of a Division Bench of the Calcutta
High Court by which the letters patent appeal filed by the appellant
was dismissed, affirming the judgment and order dated 16.8.2004
of a learned Single Judge dismissing the writ petitions filed by the
appellant wherein challenge was laid to the cancellation of lease
deed which had been executed in its favour.
3. The facts leading to the filing of the writ petition by the
appellant herein may be noticed in brief. The West Bengal Small
Scale Industrial Development Corporation Ltd. (for short
"Corporation") by three different indentures of lease each for a
period of 99 years demised in favour of the appellant M/s
Associated Indem Mechanical Pvt. Ltd., three separate industrial
sheds bearing nos.Y-76, Y-73 and Y-72 at Baltikuri Industrial
Estate, Howrah on 9.2.1970, 26.5.1972 and 31.8.1977 respectively.
Clauses 2(f)1, 2(j) and 3(B) of the lease deed which are relevant
for the controversy in hand are being reproduced below :-
"2(f)1. To use the demised premises as a place
for carrying on manufacturing business and/or
purposes connected with any manufacturing process
including processing, manufacture or assembling of
machine, tools, implements, instruments, furnaces,
heaters, ovens, scientific apparatus, inventions and
other industrial products.
2(j) To start manufacture and production as per Sub-
Clauses (f)(1) of this Clause 2, (if not already started)
within six months from the date of these presents or
within any extended period which may be granted by
Government under exceptional circumstances.
3(B). If the rent hereby reserved or any part thereof
shall remain unpaid for six months after becoming
payable or if any convents on the part of the Lessee
herein contained shall not be performed/observed or if
the demised premises be not used by the Lessee for
purposes mentioned in Clause 2(f) hereof for a
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continuous period of six months then and in any such
event, it shall be lawful for the lessor or the
Government at any time thereafter to determine the
Lease and to re-enter upon the demised premises or
any part thereof in the name of the whole and
thereupon this demise shall absolutely determine
without prejudice to the rights of the Lessor or the
Government in respect of breach of the Lessee’s
covenants herein contained.
All the three lease deeds contain identical clauses. The
Prescribed Authority sent a notice under Section 3(1) of the West
Bengal Government Premises (Tenancy Regulation) Act, 1976 (for
short "the Act") to the appellant on 15.3.1999 as it failed to
commence production and/or manufacturing activity, but the notice
was returned with the postal endorsement "abolished". After
about six months, the Prescribed Authority issued another notice
on 13.9.1999 by which the lease deed was terminated and the
appellant was asked to hand over possession of the industrial
sheds. The notice was returned with the remarks "not known". The
Corporation, thereafter, took over possession of the plots on
25.2.2000. However, on the representation made by the appellant
and on furnishing undertaking to commence manufacturing
activity and tendering rent, the possession was handed over back to
it on 17.5.2000. Even thereafter the appellant did not commence
any manufacturing activity and consequently two notices under
Section 3(1) of the Act were issued by the Prescribed Authority on
29.5.2002 calling upon the appellant to hand over possession of the
industrial sheds. The appellant filed two writ petitions before the
Calcutta High Court which were disposed of by a learned Single
Judge by separate orders. In view of the prayer made on behalf of
the appellant, a direction was issued to the Chairman of the
Corporation to give oral hearing to the appellant. The Chairman
of the Corporation after affording an opportunity of hearing to the
appellant passed a detailed order on 11.9.2002 holding that the
appellant was liable to be evicted from the demised premises. The
appellant then filed a writ petition before the Calcutta High Court
challenging the aforesaid order dated 11.9.2002 of the Chairman of
the Corporation. The writ petition was dismissed by a learned
Single Judge on 16.8.2004 and the said order was affirmed in
appeal by the Division Bench on 13.12.2005. It is these orders
which are subject matter of challenge in the present appeal.
4. Before we examine the contentions raised by learned counsel
for the parties, it is necessary to refer to certain provisions of the
West Bengal Government Premises (Tenancy Regulation) Act,
1976. Sections 2(a), (b), (c), (f), 3(1)(2), 4 and 12 of the Act are
reproduced below :-
2(a) "Government premises" means any premises which is
owned by the State Government or by a Government
undertaking but does not include the official residence of
any person authorized to occupy any premises in
consideration of the office which he holds under the State
Government or a Government undertaking for the time
being;
(b) "Government undertaking" means a body corporate
constituted by or under a Central or State Act which is under
the administrative control of the State Government or in
which the State Government has exclusive proprietary
interest;
(c) "premises" means any building or hut and includes
part of a building or hut and a seat in a room, let separately,
and also includes -
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(i) the gardens, grounds and out-houses, if any,
appurtenant thereto,
(ii) any furniture supplied or any fittings or fixtures
affixed for the use of the tenant in such building, hut or seat
in a room, as the case may be;
(f) "tenant" means any person by whom the rent of any
premises is, or but for a special contract would be, payable
and includes in the event of such person’s death, such of his
heirs as were ordinarily residing with him at the time of his
death.
3. Termination of tenancy \026 (1) Every tenancy held by
a tenant in respect of a Government premises shall stand
terminated upon the expiry of the period referred to in a
notice to quit served upon such tenant in the prescribed
manner,
(2) A tenancy in respect of a Government premises shall
stand automatically terminated without any notice to quit
where the tenant has, -
(i) violated the terms of the lease, or
(1a) 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.
Explanation - ................................. (omitted as not relevant)
Provided \005\005\005\005\005\005\005 (omitted as not relevant)
Provided \005\005\005\005\005\005\005 (omitted as not relevant)
Provided further\005\005\005\005. (omitted as not relevant)
4. Restoration of possession \026 (1) Upon termination of
a tenancy under any of the provisions of section 3 or upon a
tenancy being void under section 3A, the tenant shall
forthwith restore vacant possession of the premises occupied
by him in favour of the prescribed authority.
(2) If the tenant fails to restore possession of the premises
under sub-section (1), the prescribed authority or any officer
authorized by him in this behalf may take such steps or use
force as may be necessary to take possession of the premises
and may also enter into such premises for the aforesaid
purpose.
12. Act to override other laws \026 (1) The provisions of
this Act shall have effect notwithstanding anything
contained in any other law for the time being in force, or in
any contract, express or implied, or in any custom or usage
to the contrary.
(2) In particular and without prejudice to the generality of
the foregoing provisions, the West Bengal Public Land
(Eviction of Unauthorized Occupants) Act, 1962 shall not
be applicable to any premises to which this Act applies.
The three provisos which are appended to sub-section (2) of
Section 3 of the Act deal with default in payment of rent, renewal
of tenancy upon deposit of all arrears of rent together with interest
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etc. and recovery of arrears of rent, but they are not relevant for the
decision of the controversy. Section 13 lays down that no civil
court shall have jurisdiction to decide or deal with any question
which is by or under the Act required to be decided or dealt with
under the provisions of the Act.
5. Shri Ranjit Kumar, learned senior counsel for the appellants
has submitted that the Government Premises (Tenancy Regulation)
Act, 1976, is applicable only to residential premises and not to
industrial sheds which are commercial in nature and the demised
premises Y-76, Y-73 and Y-72 being industrial sheds and not
residential premises, the provisions of the Act under which the
notice for eviction was issued by the Prescribed Authority and
possession was sought to be taken over by the Corporation can
have no application. In support of his contention, learned counsel
has referred to the definition of "premises" and "tenant" as given
in Section 2(c) and (f) of the Act and also to the provisions
contained in Section 3(2)(ia) of the Act and has submitted that the
whole Scheme of the Act shows that the same can apply to
residential premises only and can have no application to an
industrial shed. Learned counsel has elaborated his argument by
submitting that while defining the word "premises" in sub-section
(c) of Section 2 of the Act, the words "building or hut and includes
part of a building or hut" have been used. Similarly, while
defining "tenant" under sub-section (f) of Section 2, the words "in
the event of such person’s death, such of his heirs as were
ordinarily residing with him" have been used, which show that
what is contemplated within the purview of the Act is a residential
building and not a commercial building or an industrial shed. It
has been urged that the use of the words "house or an apartment"
in clause (1a) of sub-section (2) of Section 3 unequivocally shows
that the Act was intended to apply only to residential buildings and
not to a commercial building or an industrial shed which has been
leased out for carrying on manufacturing activity.
6. Shri Bhaskar P. Gupta, learned senior counsel for the
respondent Corporation, has submitted that the intention of the
legislature is not to be gathered by merely looking at few
provisions of the Act but has to be gathered from reading the entire
Act which clearly shows that the Act was intended to cover every
kind of tenancy, whether it was for a residential purpose or a
commercial purpose or an industrial purpose. He has further
submitted that different provisions of the Act, reference to which
has been made by learned counsel for the appellant, have been
included in order to make the Act more comprehensive and
elaborate and they take within their sweep all kinds of situations.
7. We have given our anxious consideration to the submissions
made by learned counsel for the parties. In our opinion, the
contention raised by learned counsel for the appellant that the Act
is intended to apply only to residential premises cannot be
accepted.
8. The Preamble of the Act says that it is an Act to provide for
the regulation of certain incidents of tenancy in relation to
Government premises in West Bengal. The Preamble does not say
that the Act is meant for regulation of residential tenancies alone.
The definition of "Government premises" in Section 2(a) is very
wide. It means any premises which is owned by the State
Government or by a Government undertaking except the official
residence of any person authorized to occupy any premises in
consideration of the office which he holds under the State
Government or a Government undertaking. Therefore, all kinds of
premises whether commercial, industrial or residential, if owned
by the State Government or by a Government undertaking would
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be covered by the definition. But, it specifically excludes the
official residence of any person authorized to occupy any premises
in consideration of the office which he holds under the State
Government or a Government undertaking for the time being.
9. It may be mentioned here that the legislature has enacted
another Act viz., the West Bengal Government Premises
(Regulation of Occupancy) Act, 1984 and here the definition of the
word "premises" as given in Section 2(i) of the Act reads as
under:-
2(i) "premises" means any building, shed or hut, used or
intended to be used for residential purposes, and includes
part of a building, shed or hut and a room or a seat in a room
allotted separately, and also includes -
(i) the gardens, grounds, outhouses, garages and
godowns, if any, appurtenant thereto, and
(ii) any furniture supplied or any fittings or fixtures
affixed for the use of the occupant of such building, garage,
godown, shed, hut, room or seat in a room, as the case may
be.
Though the definition of "premises" in the Act under
consideration (Act No.19 of 1976) and in Act No.21 of 1984 is
almost the same, but in the substantive part the expression "used or
intended to be used for residential purposes" has been added in the
later Act. The use of the expression "used or intended to be used
for residential purposes" clearly evinces the intention of the
legislature that the 1984 Act shall apply only to residential
buildings in contradistinction to the Act under consideration viz.,
Act No.19 of 1976. Therefore, it is not possible to accept the
contention of learned counsel for the appellant that the Act under
consideration i.e. 1976 Act can have application only to residential
buildings or that the same shall not apply to non-residential
buildings like industrial sheds or commercial buildings.
10. As the language shows, the definition of the word
"premises" as given in Section 2(c) of the Act is a very
comprehensive one and it not only means any building or hut or
part of a building or hut and a seat in a room, let separately but also
includes godowns, gardens and out-houses appurtenant thereto and
also any furniture supplied or any fittings or fixtures affixed for the
use of the tenant in such building, hut or seat in a room, as the case
may be. A "seat in a room" or "gardens" or "godowns" by
themselves do not qualify to be called a residential building. A
residence ordinarily means \026 a place where one resides; the act or
fact of abiding or dwelling in a place for some time; an act of
making one’s home in a place. "Residential" ordinarily means -
used, serving or designed as a residence or for occupation by
residents; relating to or connected with residence. Gardens or
grounds or any furniture supplied or fittings or fixtures affixed in a
building or seat in a room can by no stretch of imagination be
called or said to be a residential building, but they are included in
the definition of premises. This shows that the legislature intended
to give a very wide and all comprehensive definition of premises
and did not intend to give it a restricted meaning. The opening part
of the definition of the word "premises" in Section 2(c) employs
the word "any". Any is a word of very wide meaning and prime
facie the use of it excludes limitation. (See Angurbala Mullick v.
Debabrata Mullick AIR 1951 SC 293 at 297). The definition of
premises in Section 2(c) uses the word "includes" at two places. It
is well settled that the word "include" is generally used in
interpretation clauses in order to enlarge the meaning of the words
or phrases occurring in the body of the statute; and when it is so
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used those words or phrases must be construed as comprehending,
not only such things, as they signify according to their natural
import, but also those things which the interpretation clause
declares that they shall include. (See Dadaji v. Sukhdeobabu AIR
1980 SC 150; Reserve Bank of India v. Pearless General Finance
and Investment Co. Ltd. AIR 1987 SC 1023 and Mahalakshmi Oil
Mills v. State of Andhra Pradesh AIR 1989 SC 335). The inclusive
definition of "district judge" in Article 236(a) of the Constitution
has been very widely construed to include hierarchy of specialized
Civil Courts viz. Labour Courts and Industrial Courts which are
not expressly included in the definition. (See State of Maharashtra
v. Labour Law Practitioners’ Association AIR 1998 SC 1233).
Therefore, there is no warrant or justification for restricting the
applicability of the Act to residential buildings alone merely on the
ground that in the opening part of the definition of the word
"premises", the words "building or hut" have been used.
11. The argument based on clause (1a) of sub-section (2) of
Section 3 of the Act has hardly any substance. It is important to
note that the aforesaid clause was introduced in Section 3 of the
Act by an amendment made by West Bengal Act No.46 of 1980.
Section 3 of the Act provides for automatic termination of tenancy
in respect of a Government premises on the happening of certain
contingencies. Clause (i) contemplates the situation where the
lessee has violated the terms of the lease. This is couched in very
wide terms and no inference can be drawn therefrom that it
contemplates only a residential lease. In whatever way this clause
is interpreted it cannot be restricted only to a residential lease but
would cover all kinds of leases including a commercial or
industrial lease. Clause (1a) has been introduced to squarely cover
a situation where the lessee has built a house or has acquired an
apartment either in his own name or in the name of any member of
his family within a reasonable distance from Government premises
under his tenancy. A sub-clause of a section introduced to cover a
particular type of contingency cannot cut down the scope or
content of other clauses of the same section or the main provisions
of the Act nor can the addition of the said sub-clause by way of a
subsequent amendment whittle down or restrict the applicability or
reach of the whole enactment. Therefore, clause (1a) of sub-section
(2) of Section 3 of the Act cannot lead to an inference that the Act
under consideration can have application to residential buildings
alone and not to any other type of building or land or gardens or
grounds etc. where commercial or industrial activity is carried on.
12. Learned counsel for the appellant has next submitted that in
Blue Print & 13 Ors. v. The Great Eastern Hotels Authority & Ors.
(2000) 1 Calcutta Law Times 450, a Division Bench of the
Calcutta High Court had held that the Act applied only to
residential premises and, therefore, it was not open to learned
Single Judge and also the Division Bench in the appeal filed by the
appellant to take a contrary view, namely, that the Act is applicable
to residential as well as non-residential premises including
industrial sheds. It is necessary to state here that the decision in
the case of Blue Print & 13 others was challenged by the State of
West Bengal by filing an appeal in this Court and the judgment is
reported in (2002) 4 SCC 134 (State of West Bengal & ors. v.
Vishnunarayan & Associates (P) Ltd. & Anr.). Though the appeal
was dismissed but the question as to whether the Act would apply
only to residential premises was not decided and was left open, as
will be evident from para 23 of the reports. As we have examined
the controversy and have come to the conclusion that the Act is
applicable to non-residential and commercial premises as well, the
contention raised is purely academic in nature and can have no
bearing on the fate of the appeal.
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13. It may be mentioned here that the Chairman of the
Corporation, in pursuance of the order passed by the learned Single
Judge in the writ petitions which were filed by the appellant at the
earlier stage, after considering the contemporaneous documents
and the report of the concerned sub-Assistant Engineer, incharge of
Baltikuri Industrial Estate, has recorded a clear finding that the unit
is non-functioning one and was lying closed over a long period.
The report of the West Bengal State Electricity Board showed that
the commercial line and the industrial line had been disconnected
in 1994-96 and the total dues of the appellant for the two service
connections were Rs.2,78,415/-. The fact that electricity
connection had been disconnected several years back fully
corroborates the stand of the respondent that the unit is lying
closed for a long period and no manufacturing activity was being
carried on. Thus, there was a clear violation of the terms of the
lease and the tenancy of the appellant stood automatically
terminated under Section 3(2)(i) of the Act.
14. Learned counsel has also submitted that the appellant was
entitled to ownership of two sheds after expiry of a period of 30
years as provided in clause VI(b) of the lease deed. The opening
part of Clause VI of the lease deed says \026 "Subject to the
covenants hereinbefore contained" and thereafter there are two
sub-clauses (a) and (b). Therefore, sub-clause (b) of clause VI is
not in absolute terms but is subject to the covenants enumerated in
the earlier part of the lease deed. Since it has been found as a fact
that the appellant has contravened the provisions of clauses 2(f)1
and B of the lease deed, it cannot claim any right under clause
VI(b). Therefore, the appellant is not entitled to exercise the
option to acquire ownership of the demised industrial sheds and his
claim in that regard is wholly baseless.
15. For the reasons discussed above, we find no merit in the
appeal, which is hereby dismissed with costs. The interim order
granted by this Court on 17.2.2006 is vacated.