Tridib Jyoti Ghosh vs Trustees for the Improvement of Calcutta

P.K. Ray, J.—Heard the learned Advocate for the petitioner and the learned Advocate for the respondent.

In this writ application the petitioner has challenged the communication dated 11th July, 1985 issued by the Assistant Estate Manager, Calcutta improvement Trust whereby and whereunder the petitioner was directed to surrender the vacant possession of the Flat No. A-11. CIT Scheme No. B.I.S.I., 7/1, Rajendra Mullick Street, Calcutta-700 007 upon rejecting his prayer for mutation of his name in place of the original tenant, Jogmaya Chowdhury, who breathed last leaving behind two heirs, the sons. The petitioner moved the writ Court earlier praying mutation of his name in place of deceased, Jogmaya Chowdhury, when by the order dated 20th March, 1985 B.P. Banerjee, J. (as His Lordship then was) disposed of the said writ application directing the petitioner to file a fresh representation upon annexing ''No Objection'' certificates, if any, of the legal heirs of the deceased, Jogmaya Chowdhury, the original tenant and concerned authorities were directed to decide the matter upon hearing the petitioner. The petitioner filed such representation. It is alleged that ''No, Objection'' Certificates were issued by the legal heirs of Jogmaya Chowdhury. It is contended by the petitioner that none of the sons are living in the premises and the present petitioner being the nephew all along was staying with the deceased, Jogmaya Chowdhury. This writ application is opposed by the learned Advocate for the respondents, Calcutta improvement Trust contending inter alia, that ''No Objection Certificate'' were not filed in pursuance of the direction passed by B.P. Banerjee, J. (as His Lordship then was). In terms of the order of B.P. Banerjee. J. (as His Lordship then was) the representation of petitioner was adjudicated by the authority concerned upon hearing the petitioner. By the impugned order, prayer of petitioner was rejected. It is submitted by the petitioner that no reason was assigned and communicated to the petitioner. It is further submitted that as per order of B.P. Banerjee, J. the authority concerned were required to decide the issue only on basis of ''No Objection Certificate'' granted by legal heirs of original tenant. From the order of B.P. Banerjee, J. It appears that this Court never passed the order to this effect that authority concerned would not be able to decide the issue as per law. Every order of the Court unless limited by certain riders is required to be dealt with as per law. B.P. Banerjee J. directed to consider the ''No Objection Certificate'' which means to decide it as per law. Hence, for adjudication of the matter relevant provisions under which the tenancy right was guided while Jogmaya Chowdhury, since deceased, was a tenant is required to be looked into. The concerned tenancy right of the premises is guided and controlled by the West Bengal Government Premises (Tenancy Regulation) Act. 1976 (hereinafter referred to as ''the said Act'') read with the West Bengal Government Premises (Tenancy Regulation) Rules 1976. The definition clause of ''tenant'' as appearing in the Section 2 Clause (f) of the said Act is quoted in extenso hereinbelow :

"(1)- "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 reading with him at the time of his death."

Hence, under the definition Clause, tenant means the original tenant, who was paying rent, herein the deceased. Jogmaya Chowdhury and after the death of Jogmaya Chowdhury all the legal heirs who were ordinarily residing with her at the time of her death. It is an admitted position that except the present petitioner none of the legal heirs were ordinarily residing with Jogmaya. Admittedly the petitioner is the nephew. Under the Hindu Succession Act. 1956, the nephew is not the legal heir when two sons of Jogmaya Chowdhury are living. In that view of the matter, since, the petitioner has no legal right to be a tenant in terms of Section 2(f) of the said Act, the petitioner has no legal right to pray for mutation of his name as ''tenant''. It is a settled legal position that a condition precedent for issuance of Writ of Mandamus is the existence of legal right of a person who is seeking such relief and simultaneously the performance of the legal duty and obligation by the authorities concerned on issue of which the person concerned is seeking relief. Reliance may be placed to the Judgment passed in the case of Mani Subrat Jain and Others Vs. State of Haryana and Others, , State of Kerala Vs. Smt. A. Lakshmikutty and others, , the case of State of U. P. and others Vs. Harish Chandra and others, . Even the constitutional Bench of apex Court decided this issue in the same angle in the case of Rai Shivendra Bahadur Vs. The Governing Body of the Nalanda College, . In the instant case from the statute itself that is the said Act it is clear that only the legal heirs who were ordinarily residing at the time of death of a statutory tenant are entitled to remain as tenant. Furthermore, the law has placed a rider even in respect of the legal heirs by providing that only those legal heirs who were ordinarily residing at the time of death would be entitled to have the benefits of such tenancy right. As already held that the petitioner being the nephew is not at all a legal heir as per Hindu Succession Act, 1956. Accordingly, since the petitioner has no legal right, there is no legal duty and obligation on the part of the Calcutta improvement Trust to provide "tenancy right" in favour of the petitioner in terms of the Judgment of the apex Court above referred to. The learned Advocate for the petitioner, however, submits that there are so many persons whose occupations have been regularised and accordingly it is a discriminatory action on the part of the Calcutta Improvement Trust not to regularise the petitioner''s possession. Such submission of the learned Advocate for the petitioner is not legally sustainable in view of the settled legal position that no relief can be given even applying the doctrine of "identical treatment to identical cases" until and unless the person concerned who is seeking such identical treatment satisfied his independent legal right to claim such. Identical treatment as per identical cases is not a negative approach and/or a negative doctrine but it relates to a positive approach by which a person concerned must satisfy his own legal right before seeking any order under the said doctrine. Reliance may be placed to the judgment of the apex Court passed in the case of Gursharan Singh and others etc. Vs. New Delhi Municipal Committee and others, corresponding to Gursharan Singh and others etc. Vs. New Delhi Municipal Committee and others, and in the case of Urmila Debi v. State of Bihar, reported in (1999) SCC 642 . Since, Article 14 of the Constitution is a positive concept, a person who has no legal right cannot urge for identical treatment under this Article of the Constitution of India. As already held, the petitioner is not at all a legal heir and under the statute the petitioner was not entitled to claim ''tenancy right'', hence, no relief can be granted in favour of the petitioner as the same would be in contravention of the statutory provision of the law, which the writ Court cannot do. It is a settled law that the writ Court neither will usurpt the power of authority nor abdicate the statutory provision. The parameter for exercising the power of judicial review by the High Court has already been discussed by the apex Court and law has been settled to that effect in the Judgment passed in the case of State of Himachal Pradesh and Another Vs. Umed Ram Sharma and Others, , a Judgment of three Judges Bench of apex Court in view of such position of law, the Court cannot exercise power of Judicial review even on sympathy, as sympathy and law both cannot dwell together. Though it is appreciated by this Court, as submitted by the learned Advocate that the petitioner in this hard days of accommodation problem, would suffer but the writ Court cannot pass any relief simply on the ground of sympathy. It is a settled legal position that the simpathy cannot extend to violate the statute. Reliance may be placed to the Judgment in Latham v. Jhonson and Nephew, reported in (1911) All ER 117 and the Division Bench Judgment of this Court passed in the case of Debt Rani Bhattacharya v. Director of School Education, West Bengal and Ors., reported in 1996(2) CHN 417 as well as of the case G. Kanya Sundaram reported in 1995 Lab IC 2425.

In view of the aforesaid reasoning and finding this writ application is rejected.

There will be no order as to costs. interim orders, if any stand vacated.

The petitioner is directed to handover the vacant possession of the flat in question within a month from this date.

Let xerox certificate copy of this order, if applied for, be given to the learned advocates appearing for the parties.