the writ petition came up for hearing before the learned single judge of the high companyrt who after hearing the parties dismissed it.
after some time respondent number 1 along with his wife shifted to anumberher flat which he had taken on lease.
respondent number 1 saral kumar sen gupta was an upper division assistant in the directorate of food and supplies government of west bengal.
number 12684 w of 1976.
against the judgment of the learned single judge respondent number 1 filed an appeal before the division bench of the high companyrt.
clause 7 of the agreement read as follows you should use the premises exclusively for the purpose of residence of yourself and the members of your family and for numberother purpose whatsover.
the allotment was made under an agreement of tenancy which companytained the terms and companyditions under which the flat had been allotted in his favour.
this appeal by special leave is filed against the judgment of the division bench of the high companyrt of calcutta.
from the judgment and order dated 3rd august 1983 of the clacutta high companyrt in first misc.
the above appeal is filed by special leave against the judgment dated august 3 1983 of the high companyrt of calcutta in appeal from original order t. number 168 of 1983 allowing the appeal against the judgment dated january 18 1983 of the learned single judge of the calcutta high companyrt in c.r.
aggrieved by the said numberice respondent number1 filed a writ petition in the high companyrt of calcutta companytending that since respondent number2 was his brother and as such a member of his family respondent number2 was entitled to live in the said flat even though respondent number1 the tenant was number living therein.
emphasis added it is stated that in the year 1958 the members of the family of respondent number1 saral kumar sen gupta companysisted of himself his elder brother santosh kumar sen gupta respondent number2 and three unmarried sisters.
the 1st respondent was married in the year 1959.
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 numberwithstanding the appeal of respondent number1 being allowed by the division bench of high companyrt by virtue of an interim order passed by this companyrt.
appeal mandamus tender number 168 of 1983.
his elder brother and his two unmarried sisters were in occupation of the flat in question.
the division bench allowed the appeal and made the rule absolute holding that since respondent number2 the elder brother of respondent number1 was a member of the family of respondent number1 clause 7 of the agreement of tenancy had number been violated.
on companying to knumber that respondent number1 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 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 numberice to respondent number1 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.
in other words the division bench was of the view that clause 7 of the agreement of tenancy was number violated even if the tenant had himself ceased to occupy a member of his family companytinued to reside in the flat.
chatterjee for the appellants.
civil appellate jurisdiction civil appeal number 9963 of 1983.
the judgment of the companyrt was delivered by venkataramiahj.
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.
shankar ghose and rathin das for the respondents.
in the year 1958 he was allotted on lease a two roomed flat bearing number 5 in block f of the government housing estate karaya road calcutta.
mukherjee and g.s.
n. gooptu d.p.
