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2018 DIGILAW 258 (CAL)

Ashis Kumar Bose v. Avijit Mukhopadhyay

2018-02-14

SANJIB BANERJEE

body2018
JUDGMENT : Sanjib Banerjee, J. 1. The defendant in an eviction suit is the petitioner herein. 2. The order impugned is one that has been passed under Order VI Rule 17 of the Code prior to the commencement of the trial for the amendment of the plaint. The plaintiff was not the original owner of the suit premises and claims to have come into such ownership upon a partition decree being passed. The plaintiff instituted the suit for eviction on divers grounds in 2012. 3. In course of the petitioner's application under Section 7(2) of the West Bengal Premises Tenancy Act, 1997, the petitioner apparently revealed that the petitioner was not the person who was inducted into the tenancy, it was the petitioner's grandfather who was the contractual tenant and the petitioner's grandfather had died in the year 2000. 4. Section 2(g) of the Act of 1997 is quite a departure from the comparable provision of Section 2(h) of the predecessor statute of 1956. Simply put, by virtue of the definition of a "tenant" in Section 2(g) of the present Act, the protection under such Act is limited to a contractual tenant, subject to the quantum of rent; and, to the heirs of the contractual tenant who resided at the tenanted premises at the time of the death of the contractual tenant, for a specified period of time. The heirs of a contractual tenant who resided at the tenanted premises at the time of the death of the contractual tenant are regarded as tenants - and, thereby, entitled to protection under the Act of 1997 - for a period of five years from the date of death of the contractual tenant or for a period of five years from the time that the Act of 1997 came into effect in July, 2001, whichever is later. 5. The very regime of protection given to tenants has been modified by the 1997 Act. Instead of all tenants who enjoyed the protection under the 1956 Act, subject to territorial considerations, only certain classes of tenants have been accorded the protection under the 1997 Act. Ordinarily, and as recognised by the Transfer of Property Act 1882, a landlord would be entitled to terminate a tenancy at will, subject to a contract to the contrary. Instead of all tenants who enjoyed the protection under the 1956 Act, subject to territorial considerations, only certain classes of tenants have been accorded the protection under the 1997 Act. Ordinarily, and as recognised by the Transfer of Property Act 1882, a landlord would be entitled to terminate a tenancy at will, subject to a contract to the contrary. If, therefore, a tenancy is created without the duration thereof being specified, a simple notice under Section 106 of the Act of 1882 would suffice for the tenancy to be determined. Rent control legislation, on the other hand, eclipses the operation of the Transfer of Property Act in such areas that are specified in the special legislation. Just as the State Legislature is entitled to accord protection to tenants as a whole, it also has the authority to extend the protection under rent control legislation to specified classes of tenants. 6. The 1997 Act affords protection to tenants based on the quantum of monthly rent paid for the tenanted premises. Further, the protection under such statute is extended to the heirs of the original or contractual tenant for a specified duration. Section 2(g) of the Act of 1997 specifies the duration to be, in its own words, "for a period not exceeding five years from the date of death of such tenant or from the date of coming into force of this Act, whichever is later, his spouse, son, daughter, parent and the widow of his pre-deceased son who were ordinarily living with the tenant up to the date of death of the tenant as the members of his family and were dependent on him and who do not own or occupy any residential premises..." The tenancy in the present case pertains to a residential property. 7. In a sense, the heirs of the original or contractual tenants are given protection under the Act of 1997 for a period of five years so that may arrange their affairs and make alternative arrangements within such reasonable period. So that the provision was not struck down as arbitrary and unreasonable, the period of five years was uniformly afforded to the heirs of all contractual tenants, irrespective or whether the contractual tenant had died prior to the Act of 1997 coming into effect. So that the provision was not struck down as arbitrary and unreasonable, the period of five years was uniformly afforded to the heirs of all contractual tenants, irrespective or whether the contractual tenant had died prior to the Act of 1997 coming into effect. In other words, upon the Act of 1997 coming into effect, the period of five years would begin from the date the Act became effective in case the original or contractual tenant had died prior to the Act coming into effect. In the cases of the heirs of the original or contractual tenant where the original contractual tenant died after the Act of 1997 came into effect, the period of five years would be counted from the date of such death. 8. Since it was revealed in course of the petitioner's application under Section 7(2) of the said Act that the petitioner was not the original tenant who had been inducted at the tenanted premises and the opposite party was not aware of such position, the trial court has accepted the explanation and has allowed the amendment. In any event, the trial court could have allowed the amendment without the explanation since the trial had not commenced and the embargo under Order VI Rule 17 of the Code was not in operation. 9. There does not appear to be any infirmity in the order impugned dated January 5, 2017. However, nothing in this order should prejudice the petitioner herein at the trial and the discussion herein is limited to the context of the amendment being allowed. 10. C.O. 365 of 2017 is dismissed. 11. There will be no order as to costs.