- CJ ASSOCIATESS, 10-12-2024
However, with the object of uniform legislation across the country the Central Govt formulated a model draft for all states in the country to devise the premises tenancy act so as to make it exhaustive as far as the interests of all concerned. Accordingly, the Premises Tenancy Act, 1997 was enacted to ensure not only the rights of the landlord but also the tenant in possession. Shelter is considered to be one of the basic needs of human being. A person who is in desperate need of a shelter should not be deprived because of precedents which is the outcome of litigation between the landlord and the tenant. That is why the interest of tenant has also been taken care of in the act of 1997.But this fact cannot also be ignored that even at present there are innumerable disputes are already pending before the judicial forum in the state of west Bengal due to wrongful acts on the part of the tenants. Therefore, it is necessary to protect the landlords against the rogue tenants who having been unlawfully occupying the portion of the premises let out to them are flouting the terms and conditions of the agreement entered into between the landlord and the tenant. For further discussion on this topic let us discuss the meaning and significance of these two terms.
Definition of landlord and tenant as per West Bengal Premises Tenancy Act, 1997 :
Section 2(c) of the West Bengal Premises Act, 1997 defines what is meant by the term “Landlordâ€. According to this section, landlord includes any person who for the time being is receiving or is entitled to receive the rent for any premises whether on his own account or on account of or behalf of or for the benefit of any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent if the premises were let to a tenant.
Therefore, it is clear that normally landlord is the person who has ownership over the property and is entitled to receive rent from the tenant who was given possession over a particular portion of the said property. A landlord has a right to deal with the property according to his/her choice subject to the law of the land and is not answerable to anyone for his/her deeds. The expressions “landlord†and “ownership†are inseparable and inter-linked with each other. Simultaneously, the landlord need not necessarily be the actual owner of the property concerned as any person duly authorised by the original landlord to stay and collect rent from the tenant can be termed as “Landlord†for the purpose of this act. In simple words, landlord is the person who is entitled to exercise legal right over the property.
Illustration -1 : let us assume a house is registered in the name of Mr. A who resides in that house. One day, Mr. C approached Mr. A and as per the agreement entered into between them Mr. A decided to let the ground floor of his house to Mr. C. Now, Mr. A is entitled to receive rent from his tenant i.e. Mr. C as Mr A is the original owner of his house. He has right, title and interest over the said property and Mr. C cannot live in the said house according to his wishes except as provided in the agreement entered into between him and the landlord.
Illustration -2 : in the second case, though the house is registered in the name of Mr.A but he never resides in that house. Instead, he authorised Mr B to live in the premises and collect monthly rent from the tenant i.e. Mr. C. Now, as per West Bengal Premises Tenancy Act, 1997 Mr. B would be treated as landlord within the meaning of the aforesaid act and can even prevent the tenant from doing any unlawful act which is in contravention of the agreement entered into between Mr. A and Mr. C if he is duly so authorised by Mr. A.
A tenant on the other hand is a person who is living in the premises of the landlord as per the agreement entered into between them and is liable to pay rent to the landlord for occupying the premises of the landlord.
The definition of tenant as per section 2(g) of the West Bengal Premises Tenancy Act,1997 is set out herein-below :
“tenant means any person by whom or on whose account or behalf the rent of any premises is or, but for a special contract, would be payable, and includes any person continuing in possession after termination of his tenancy and, 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 dependent 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 dependent 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 that the time-limit of five years shall not apply to the spouse of the tenant who was ordinarily living with the tenant up to his death as a member of his family and was dependent on him and who does not own or occupy any residential premises,
Provided further that the son, daughter, parent or the widow of the predeceased son of the tenant who was ordinarily residing with the tenant in the said premises up to the date of death of the tenant as a member of his family and was dependent on him and who does not own or occupy any 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. This proviso shall apply mutatis mutandis let out for non-residential purposeâ€.
As per the definition of tenant under West Bengal Premises Tenancy Act, 1997 the following persons are tenant :-
a) the persons who were in possession after termination of their tenancy and
b) in case of death of actual tenant the family members such as spouse, son, daughter, parent and widow of their predeceased son who were ordinarily living with the tenant up to the date of death of the tenant as the members of their family and
c) were dependant on them and
d) who do not own or occupy any residential premises and
e) in respect of premises let out for non-residential purpose the spouse, son, daughter, and parent of tenant who were ordinarily living with the tenant up to the date of death of tenant as members of family and were dependent on him or
f) a person authorised by tenant who is in possession of such premises
However, a person cannot be said to be tenant against whom any decree or order for eviction has been made by a court of competent jurisdiction.
In order to protect his property the landlord is primarily required to enter into an agreement with the tenant on certain terms and conditions based upon which the landlord can initiate a proceeding against the tenant in a civil court having jurisdiction to entertain, try and determine the suit. But notwithstanding anything contained in the agreement between the landlord and the tenant if the tenant commits any of the following acts then the landlord can evict the tenant by filing a civil suit against him before the appropriate court of law. The grounds for eviction of a tenant is enumerated in section 6 of the Premises Tenancy Act, 1997. According to this section, the following are the grounds on which a tenant can be evicted by due process of law.
The Grounds
a) If the tenant has sublet, assigned or otherwise parted with the possession of whole or any part of the premises without obtaining the consent of the landlord in writing.
Explanation – It may so happen that the tenant is not permitted to sublet the whole or any part of the premises to any third party and it is the pre-condition in the agreement entered into between the landlord and tenant that the tenant cannot sublet the portion in which the tenant resides or any portion of it and even if the tenant is permitted in terms of the clause of the agreement the tenant has to take prior permission in writing from the landlord. However, if it is found that the tenant is guilty of sub- letting either in whole or any part of possession then the landlord can evict the tenant by due process of law that is to say by filing a civil suit against the tenant before appropriate court of law.
b) If the tenant has used the premises for a purpose other than that for which it was let out without obtaining the consent in writing of the landlord.
Explanation – It is often seen that the landlord let out the particular portion of his property to tenant for a domestic purpose of living. But subsequently it was found that the tenant used it for the purpose of storage of goods. The landlord has every right to evict tenant if the tenant has committed such wrongful act.
c) If the tenant has made default in payment of rent for three moths within a period of twelve months or for three rental periods within a period of three years where the rent is not payable monthly.
Explanation – Let us assume the effective date of tenancy is since 1st of January 2022and the tenancy is for a period of 12 years. The tenant now makes default of payment of monthly rent for a period of 3 (three) months within the period of twelve months. Then, the landlord can sue the tenant for eviction before appropriate court of law.Sometimes it may so happen that the period of tenancy is for 3 (three years) and the tenant need not pay rent on monthly basis but despite makes default of paying rent for three rental periods in that case the landlord is entitled to evict the tenant from his occupation over the premises.
d) Where the premises is required by the landlord for the purpose of building or rebuilding or for making substantial addition or alteration and such building or rebuilding or substantial addition or alteration cannot be carried out without the premises being vacated.
Explanation – the situation may arise when the landlord is required to make addition or alteration of the structure of the building and it is necessary to do the same otherwise the building or any part of the building may collapse. The landlord can ask the tenant to vacate the premises for aforesaid purpose and if the tenant declines then the landlord is entitled to take appropriate action for evicting the tenant.
e) Where the landlord or any person for whose benefit the premises is held reasonably requires the premises for his own occupation and the landlord or such person is not in possession of any suitable accommodation within the same Municipal Corporation or Municipality or in any other area within ten kilometres from such premises where this Act extends.
Explanation – suppose Mr X resides within the Municipal area of Bidhannagar. He has rented a portion of his property to Mr y. Few years later Mr X reasonably requires the property for his own occupation and he has no other suitable accommodation within 10(ten) kilometres of the Municipal area where he lives in. The tenant i.e. Mr Y cannot retain his occupation as and when he is asked to vacate the premises and if he declines Mr X has every legal right to evict Mr Y from the premises let out to him.
f) Where the tenant has been given notice to quit but has failed to deliver vacant possession of the premises to the landlord in accordance with such notice.
Explanation – In case when the landlord duly served notice to quit upon the tenant for vacating the premises within a certain period as mentioned in the notice but he has failed to do so. In that event, the landlord can evict the tenant from his occupation by due process of law.
g) If the tenant or any person residing in the premises let out to the tenant has done any act contrary to the provisions of clause (m), (o) and (p) of section 108 of the Transfer of Property Act, 1882.
Explanation – Clause (m) of Transfer of Property Act, 1882 speaks of the lessee is bound to keep and on the termination of the lease to restore the property in as good condition as it was in at the time when the lessee was put in possession. The lessee is also bound to allow the lessor and his agents to enter upon and inspect the premises at all reasonable time. If any portion of the property is found to be defective by the act of lessee then the lessor may serve him notice to repair the portion and the lessee is duty bound to make it good within 3(three) months after such notice has been given.
Clause (o) of Transfer of Property Act, 1882 says that the lessee may use the property as a prudent person but he must not use it in manner which may cause permanent damage to that portion.
Clause (p) of Transfer of Property Act, 1882 says that the lessee must not erect on the property any permanent structure except for agricultural purposes without the consent of the landlord.
In breach of the above conditions, the landlord is entitled to evict the tenant from his premises.
h) Where the tenant has been using the premises or any part thereof or allowing the premises or any part thereof to be used for immoral or illegal purpose.
Explanation – it is often seen in many cases that the tenant taking undue advantage of the situation has started using the property for any illegal purpose e.g. Mr A rents out his ground floor to Mr B for domestic living with his family. Subsequently, it was found that Mr B was living with a stranger woman who is known for her immoral activities in the society. In that case, the tenant is liable to be evicted by the landlord.
i) If the tenant is guilty of any act of waste or of any negligence or default resulting in material deterioration of the condition of the premises.
Explanation – if it is so found that by act of tenant or any gross negligent the premises has been damaged to a great extent. The landlord then is legally entitled to evict the tenant from the said premises.
j) Where the tenant or any person residing in the premises let out to the tenant has been guilty of conduct which is a nuisance or causes annoyance to the neighbours including the landlord.
Explanation – Mr. A entered into an agreement for rent with Mr. B. There was specific condition in the aforesaid agreement that Mr. B will never cause inconvenience or annoyance to anyone in the locality including landlord e.g. the tenant must not behave in such manner which he should not do publicly. If the tenant does that the landlord would have every right to evict him.
k) Where the tenant has acquired or constructed or has been allotted a house or flat, provided a moratorium for one year is allowed for vacating the premises.
Explanation – In case of residential property let out the tenant has made any construction or in case the tenant has been provided any flat or house for which the moratorium of one year is allowed to vacate the premises but the tenant does not abide by then the landlord may evict him.
l) Where the landlord is a member of the armed forces of the Union of India and requires it for occupation of his family and produces a certificate of the prescribed authority referred to in section 7 of the Indian Soldiers Act, 1925 that he is serving under special conditions within the meaning of section 3 of that act or is posted in a non-family area.
Explanation – This particular clause does not require much explanation as it is categorically stated herein that if the landlord being a member of armed forces requires the premises so let out for his occupation of his family members or he was posted in a non-family area for which the landlord would get privilege and is entitled to evict the tenant.
m) Where the tenant or his spouse or son or daughter or parent or the widow of his predeceased son who is dependent on him does not reside in the premises ten months and keeps the premises under lock and key.
Explanation – Suppose Mr. Y is the tenant. As per this section if he or his spouse or son etc who being dependent on Mr. Y does not reside in the premises let out for a continuous period of ten months and keeps it under lock and key preventing the landlord to inspect the premises whether it is in habitable condition or not or the tenant has caused substantial damage at all then the landlord can evict him.
n) Where a landlord has acquired his interest in the premises by transfer, no suit for the recovery of possession of the premises on the ground of requirement for building or rebuilding or addition or alteration or requirement for own occupation shall be instituted by the landlord before the expiration of a period of one year from the date of acquisition of such interest.
Explanation – Let us assume Mr. X bought a property from Mr. A with the tenant residing therein in the property. As per the language of this act, Mr. X cannot file a suit for the recovery of possession of the premises for his own occupation on the ground of building or rebuilding or any addition or alteration until the period of 1(one) year elapses from the date of such acquisition by Mr. X.
o) Where the landlord requires the premises on the ground of building or rebuilding or addition or alteration or for his own occupation and the Civil Judge is of the opinion that such requirement may be substantially satisfied by ejecting the tenant or a sub tenant from a part of the premises and allowing the tenant or the sub tenant to continue in occupation of the rest of the premises then if the tenant or sub tenant agrees to such occupation the Civil Judge shall pass a decree accordingly and fix the proportionate rent for the portion remaining in the occupation of the tenant or sub tenant. The rent so fixed shall be deemed to be fair rent for the purposes of this Act. If the tenant does not agree but the sub tenant agrees to such occupation no decree or order for ejectment shall be passed against the sub tenant who shall become with effect from the date of the decree or order a tenant directly holding under the landlord.
Explanation – The fact is such that the tenant ( Mr. Y ) is residing in the house of the landlord ( Mr. X ). Now, Mr X requires the premises for his own occupation and he is desirous of making some alteration in a particular portion of his premises. If the Court forms an opinion that the tenant and the sub tenant ( Mr. YY ) under him should be shifted to rest of the portion of the premises and passes a decree to that effect then the rent for the rest of the premises so fixed would be treated as fair rent. Secondly, if the tenant does not agree but the sub tenant agrees to such accommodation then the sub tenant i.e. Mr. YY shall be treated as tenant directly under the landlord.
p) Notwithstanding anything in any other law for the time being in force, no suit for the recovery of possession of any premises on any of the grounds as aforesaid, except on the ground mentioned in clause (e) of sub section (1) shall be instituted by the landlord unless he has given to the tenant one month’s notice expiring with a month of the tenancy.
Explanation – It means no matter what is stated in the other statutes for the time being the landlord cannot sue for recovery of possession of any premises on any of these grounds as stated herein above unless the landlord gives tenant one month’s notice prior to expiration of tenancy. But there is one exception to iti.e.clause (e) of sub section (1) which says if the tenant is given notice to quit but despite the tenant fails to vacate the premises then the landlord can evict him. Therefore, only with regard to clause (e) of sub section (1) of section 6 the landlord is entitled to vacate the tenant from his premises when the landlord previously served the tenant notice to quit.
q) Notwithstanding anything contained in this Act or in any other law for the time being in force no suit or proceeding shall be instituted by the landlord within two years from the date of commencement of this act for recovery of possession of any premises to which the provisions of the West Bengal Premises Tenancy Act, 1956 did apply but the provisions of this act do not apply.
Explanation – this particular clause is very specific to its application. It says that the landlord cannot bring any action for recovery of possession of any premises within two years of commencement of this act where West Bengal Premises Tenancy Act,1956 did apply but not West Bengal Premises Tenancy Act, 1997. However, after the expiry of two years there is no such embargo as was intended by the legislature which is implied.