Ramkrishna Poddar And Others vs Sudhanshu Saha

Subhasis Dasgupta, J

Since a common law point was urged to be decided by this Court, on the prayer of learned advocate for both the parties, all the three (03) cases were heard together. Plaintiff/opposite party filed three (03) different suits for ejectment in the court of learned Civil Judge (Junior Division), 2nd Court, Serampore with a prayer for recovery of khas possession describing the defendant involved in three (03) such suits (Title Suit No. 72779 of 2017, 72792 of 2017 and 72828 of 2017) as trespassers. In all the three (03) suits the respective defendant (who are petitioners of C.O No. 915 of 2019, C.O. No. 917 of 2019 and 918 of 2019), filed their respective petitions under 7(1)/7(2) of the West Bengal Premises Tenancy Act, 1997 for availing of the protections granted under such tenancy Act. The learned court below vide order dated 20th September, 2018 rejected the prayer of respective defendant in all the three (03) suits under Section 7(1) and 7(2) of West Bengal Premises Tenancy Act, 1997 holding that those two applications were not maintainable.

Admittedly the original tenant being the predecessor/father of petitioner involved in three (03) such cases was the erstwhile tenant, who admittedly suffered his death on 21.09.98. Without any controversy the premises in question, wherefrom the respective petitioner was sought to be evicted was a non-residential tenancy being a shop room situated in the suit premises.

Adverting to Section 2(g) of the West Bengal Premises Tenancy Act, 1997, learned advocate for the petitioner submitted that since the defendant continued to stay ordinarily at the time of death of the original tenant, as member of the original tenant being dependant on the original tenant, he would be entitled to a life time protection within the extended meaning of tenant under Section 2(g) of Act from being evicted in respect of the suit premises let out for non-residential purposes. Learned advocate for the petitioner further submitted that the restriction imposed of five (05) years, shown in Section 2(g) of West Bengal Premises Tenancy Act, 1997 allowing heirs of the original tenant to remain in possession after the demise of the original tenant would not be attracted to non-residential tenancy. It was thus proposed by the petitioner that by reason of the extended meaning of 'tenant' found in Section 2(g) of West Bengal Premises Tenancy Act, 1997, the learned court below ought to have allowed the petitions under Sections 7(1) and 7(2) of the Act giving benefits thereunder under Section 2(g) of the Act.

Learned advocate for the plaintiff/landlord/O.P disputing with the submission raised by the petitioner submitted that the Section 7 of the West Bengal Premises Tenancy Act, 1997 providing protection to tenant would be applicable in a suit, filed under Section 6 of the said Act, and since the instant suit was not a suit under Section 6 of the Act, filed long after the expiry of five years of the death of the original tenant, or five years after the date of coming into force of the Act ( the Act came into force on 10.07.2001), the claim for protection under Sections 7(1) and 7(2) of West Bengal Premises Tenancy Act, 1997 would not be available to petitioner/defendant.

Learned advocate for the plaintiff/O.P. further submitted that in this case the defendant was not treated as tenant, and his tenancy having terminated by operation of law with the passage of time, the present suit was filed treating petitioner as trespasser. It was thus proposed by the learned advocate for the plaintiff/O.P that learned court below had rightly rejected the applications under Sections 7(1) and 7(2) of the Act after doing strict adherence to the provisions of the law.

The only point to be decided in this case is whether the time limit of five years allowing different category of heirs of original defendant to stay in tenant premises after the demise of the original tenant would be applicable in case of non-residential tenancy or not.

Section 2(g) of the West Bengal Transfer of Property Act has defined the word 'tenant' providing extensive meaning to the term used as 'tenant' and the most material part relevant for addressing the issue may be mentioned as hereunder:-

" in the event of death of any tenant, also includes, 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 predeceased 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 dependant on him and who do not own or occupy any residential premises, and [in respect of premises let out for non-residential purpose his spouse, son daughter and parent who were ordinarily living with the tenant up to the date of his death as members of his family, and were dependant on him............."

The premises in question was used as a shop room, obviously within the meaning of non-residential tenancy. Thus in view of the extended meaning of tenant appearing in Section 2(g) of the Act, for such non-residential tenancy, his spouse, son, daughter and parent who were living with the tenant till the date of his death as members of his family and were dependant on the original tenant would be entitled to be construed as tenants for a period not exceeding five years from the date of death of the original tenant or from the date of coming into force of this Act whichever is later.

Admittedly plaintiff/O.P instituted instant eviction suit in the year 2017 with a prayer for recovery of possession treating the respective defendant as trespasser.

Argument was raised by the learned advocate for the petitioner in order to persuade this court to believe that the time period of five (05) years providing heirs of the original tenant to stay in the tenanted premises after the demise of the original tenant would be applicable to residential tenancy, but it would not be attracted to non-residential tenancy. In support of such stand, reliance was sought to be taken by learned advocate for the opposite party referring an unreported decision delivered by Coordinate Bench of this Court in C.O. 1100 of 2016 rendered in the case of Smt. Ashrukana Pal vs. Smt. Sabita Ghosh Sarkar & Anr. wherein it was decided that the time limit appearing in Section 2(g) of the Act for a period not exceeding five years would not be applicable to non-residential tenancy. This point was addressed by the Division Bench of our High Court in the case of Nasima Naqi vs. Todi Tea Company Limited & Ors. reported in (2019) 1 WBLR (Cal) 308 in order to decide, if the heirs of the deceased/tenant would be entitled to life time protection from being evicted in respect of the premises let out for non-residential purposes under Section 2(g) of the West Bengal Premises Tenancy Act, 1997, or not. It would be profitable here to quote relevant observation made in paras 14 and 15 of such judgment as hereunder:-

"14. Now, when the material part of the substantive provision in Section 2(g) of the Act of 1997 is read with the applicable proviso relevant to premises let out for non-residential purpose, the entirety of the provision can be seen to be as follows:

"tenant" ... in the event of death of any tenant, also includes, 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, ... and in respect of premises let out for non-residential purpose his spouse, son, daughter and parent who were ordinarily living with the tenant up to the date of his death as members of his family, and were dependant on him or a person authorised by the tenant who is in possession of such premises but shall not include any person against whom any decree or order for eviction has been made by a Court of competent jurisdiction:

Provided further that the son, daughter, parent or the widow of the predeceased son of the tenant who was ordinarily residing with the tenant ... up to the date of death of the tenant as a member of his family and was dependant on him and who does not own or occupy any non-residential premises, shall have a right of preference for tenancy in a fresh agreement in respect of such premises on condition of payment of fair rent.

Once the provision is so simplified as above, the answers to the legal questions raised appear in clear light. The original tenant in this case died in July, 2003. Since such date of death was after the Act came into force on July 10, 2001, if the remainder of the month of July, 2003 were discarded, no heir or person authorised by the original tenant to be in possession of the suit premises could legally claim to be a tenant in respect of the suit premises in terms of Section 2(g) of the Act of 1997 on or after August 1, 2008. As a consequence, no protection under Chapter III of the Act of 1997 was available to any heir of the original tenant in this case or any person authorised by the original tenant to be in possession of the suit premises with effect from August 1, 2008. The status of the defendant occupants at the suit premises stood reduced to mere occupants at the pleasure of the landlord; but since the law of the realm requires any person in possession of an immovable property to be removed therefrom only by procedure established by law, after August 1, 2008 the landlord here was entitled to bring a suit for eviction, which the defendant occupants at the suit premises could never have resisted on the basis of any perceived protection under the Act of 1997."

The proposition of law decided in that case is that the time limit of five years is equally applicable in case of non-residential tenancy also. Section 2(g) of West Bengal Premises Tenancy Act, 1997 came into effect from July, 2001, while the original tenant suffered his death on 21.09.1998 i.e. long before the Act came into force. There was no fresh tenancy created between the parties within such time limit of five years provided in section 2(g) of the Act. In the absence of anything others to the contrary being established the claim of being tenant in respect of the suit premises let out for non-residential premises, thus got reduced to mere occupant at the pleasure of the land, and as such the protection provided under Section 7 of the Act would not be available. The presence of the word 'and' appearing in section 2(g) of the Act linking the protection available in case of residential tenancy, and the non-residential tenancy has made it clear that the words used after the conjunction 'and' cannot be read in isolation with the words preceding the word "and". The second proviso appended to Section 2(g) of the Act specifying that such proviso would apply mutatis mutandis to premises let out for non-residential purpose has sufficiently established making no distinction between the residential tenancy and non-residential tenancy, so far as the time limit of five years to be availed of by the legal heirs of the original tenant, in the event of his death. In view of such ratio being decided by the Division Bench of this court, the judgment referred by the learned advocate for the petitioner rendered by Single Bench of this court would be without any relevance.

Learned advocate for the plaintiff referring decision reported in 2018 (1) CHN (Cal) 545 delivered in the case of Dipali Halder vs. Chandan Das submitted that Section 7 of the West Bengal Premises Tenancy Act, 1997 would be attracted only, when the grounds available under Section 6 of the Act were invoked for eviction of tenant. The opposite party/defendant had nothing to controvert the settled proposition of law, as already referred by the petitioner that the protections available under Section 7(1) and 7(2) of West Bengal Premises Tenancy Act, 1997 would be attracted only in cases where grounds shown in Section 6 of the Act were made use of for eviction of tenant under the Act.

Admittedly, no notice was issued before the institution of the suit on the ground that the suit was not framed on the basis of cause of action arose following service of notice under Section 6(4) West Bengal Premises Tenancy Act. The proposition of law is that notice under Section 6(4) of the Act will be served upon the defendant/tenant mandatorily before filing of such suit after expiry of the notice period provided under Section 6(4) of the Act, if the tenant does not vacate the tenanted premises after expiry of the notice period. But here in this case neither the suit was founded, nor framed on the basis of cause of action arose following service of notice under Section 6(4) of the West Bengal Premises Tenancy Act. The averments contained in the plaint have sufficiently established that it was not a suit founded on the basis of cause of action arose following non-service of notice under Section 6(4) of the West Bengal Premises Tenancy Act, 1997. The instant suit not being against the tenant within the meaning of tenant as defined under West Bengal Premises Tenancy Act, 1997, the defendant/O.P is not entitled to get any protection under Sections 7(1) and 7(2) of the West Bengal Premises Tenancy Act. The present suit essentially being a suit for eviction of a trespasser, which is very much maintainable in the manner in which it was framed or rather founded, where there is no scope of application under Section 7(1) and 7(2) of the West Bengal Premises Tenancy Act.

Learned advocate for the petitioner producing some copy of rent receipts together with the challans tried to impress the court that even after the demise of the original tenant, the plaintiff/landlord accepted the rent issuing rent receipt therefor, which according to petitioner, was sufficient to reveal the landlord and tenant relationship between the parties. Since nothing was established creating a fresh tenancy between the parties during the time limit of five (05) years provided under Section 2(g) of the Act, the xerox copy of rent receipts produced would be without any significance. More so such documents not being produced before the court below, the same should not be looked into, while exercising power of revision under Article 227 of the Constitution of India. The deposits of rent, if made by challan, appear to have been voluntarily and unilaterally made at the own risk of the petitioner/defendant, which need not be taken into account in the given context of this case.

The findings reached by the learned court below, while rejecting the applications under Sections 7(1) and 7(2) would go unaltered being arrived at after doing strict adhere to the provisions of the law.

The three revisional applications being C.O. No. 915 of 2019, C.O. No. 917 of 2019 and C.O. No. 918 of 2019 heard together as such would fail being without any merits.

With this observation, the three revisional applications stand disposed of.

Urgent certified copy of this order and judgment, if applied for, be given to the appearing parties as expeditiously as possible upon compliance with the all necessary formalities.