JUDGMENT
G.N. Ray, J.
1. This appeal has been preferred by the Estate Manager, Estate Directorate, Housing Department, Government of West Bengal, the Care-Taker-Cum-Collector, M.I.G. Housing Estate, B. V. College Compound, Calcutta and the State of West Bengal, represented by the Secretary, Housing Department.
2. It appears that the respondent, Lt. Col. Sudhir Mohan Dutta, was allotted a flat being flat No. 1/5 in the M.I.G. Housing Estate at 37, Belgachia Road, Calcutta by the Estate Manager, Estate Directorate, Housing Department in April, 1965 and the said respondent thereafter took possession of the flat by executing an agreement as required to be executed for such purpose. It is the case of the appellants that the Estate Supervisor of the Estate Directorate made certain enquiries on 15th September, 1980 and 3rd March, 1983 and from such enquiry it was revealed that the petitioner had built a house in the name of his wife, Sm. Madhuri Dutta at Block-AA-38, Salt Lake City, Calcutta and the ground floor of the said house was let out to the United Commercial Bank. The said house is a three-storied one. It also transpired from the communication from the Manager of the said Bank that the tenant Bank had been paying rent in the name of Sm. Madhuri Dutta and from the records of the Salt lake authority it appeared that the land of the house stood in the name of the wife of the respondent. The tenancy made in favour of the respondent was sought to be cancelled in exercise of the power under Section 3(2)(i)(a) of the State Government Premises (Tenancy Regulation) Act, 1980 as amended. The relevant provision since relied on by the appellant in support of the said order is set out hereafter.
“(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 (ia) …………
(ii) 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”.
3. Mr. Chatterjee, learned counsel appearing for the appellants has contended that since it was ascertained from enquiry that the allottee, Lt. Col. Sudhir Mohan Dutta had built a house in Salt Lake and let out a floor to the United Commercial Bank, the allotment of the said flat and the lease given for the said purpose automatically stood terminated under the provisions of Section 3(2)(ia). He has submitted that it was the duty of the tenant to establish that the house which stood in the name of the wife and the son of the tenant was the house belonging to the said persons and not to the tenant and since the tenant had failed to produce sufficient materials on the basis of which the concerned authority could be satisfied that such wife and son of the tenant were not the benamdars, the authority concerned was justified in proceeding on the footing that the wife and the son in whose names the house at Salt Lake stood were the benamdars and the tenant was the real owner and as such Section 3(2)(ia) is applicable. In our view such contention made on behalf of the appellants cannot be accepted and the proposition appears to be preposterous. It does not appear to us that the Estate Manager has been vested with the power to decide the title of the allottee or third persons and the tenant is under no obligation to prove that what is apparent is not real. Under the law, if any person imputes that a particular property really belongs to somebody else although it stands in the name of another person, he is under an obligation to prove such case of benami transaction in the appropriate civil court. Simply because the Estate Officer had doubts in his mind that the house at Salt Lake which stands in the names of the wife and the son was a benami property of the tenant, he cannot invoke the provision of Section 3(2)(ia) for termination of tenancy. If such power is exercised by the Estate Officer by which he will be determining the respective title of the parties, serious consequences are likely to follow and we have no manner of doubt that he has not been vested with such power to decide the question of title in the purported exercise of the power under Section 3(2)(ia). Incidentally we may note here that the lease of land in Salt Lake in favour of Sm. Madhuri Dutta has been given by the Government of West Bengal and the State Government is still today accepting lease rent and municipal taxes for the holding in Salt Lake from the said Sm. Madhuri Dutta.
4. For the reasons aforesaid, the purported order of cancellation and/or termination of the tenancy of the respondent must be set aside and the learned trial Judge is justified in making the Rule absolute. We, therefore, find no reason to interfere with the said order in this appeal.
5. If has been submitted before us that in terms of the impugned order, the respondent allottee has been ousted from the said flat in question. We, therefore, direct the appellants to put the said respondent in possession of the said flat within a week from today.
6. The application for stay is accordingly disposed of.
7. In view of the order passed above, no further order need be passed in the appeal and the appeal is disposed of on similar terms by treating the same as on day’s list by consent of parties. 8. We, however, make it clear that since this appeal can be disposed of simply on the footing that in the facts of the case, application of Section 3(2)(ia) was not attracted, the other contentions sought to be raised in the writ petition need not be considered by the Appeal Court and the said contentions are kept open.