Dr Dhananjaya Y Chandrachud, J
Leave granted
This appeal arises from the judgment delivered by a Division Bench
of the High Court of Calcutta on 19 December 2018 rejecting the appeal filed
by the appellant against a decree for eviction under the West Bengal
Premises Tenancy Act 19971.
The spouse of the appellant was inducted as a tenant of shop Room
No 23 situated on the ground floor of the premises situated at 2 Lane Bazar
Street Calcutta-700001 on a monthly rent of Rs 235.95 under an agreement
dated 6 May 1988. An interest free deposit of Rs 12,000 was paid by the
original tenant at the time of being inducted into the premises. The tenant
the coming into force of the amended provisions of the Act with effect from
1 “the Act’
10 July 2001, the tenant was liable to pay enhanced rent in terms of the
proviso contained in Section 17(4B) which he had failed to pay. The landlord
claimed to have addressed a demand on 13 December 2002 which was not
complied with. The landlord claimed that, in any event, after the expiry of
five years from the date of death of the original tenant, his heirs had no right
to continue in possession of the premises. The landlord addressed a notice
to the heirs of the original tenant on 30 July 2010 and eventually filed a suit
for eviction on 4 August 2017. The Judge in the 7th Bench of the City Civil
Court, Calcutta passed a decree for eviction on the ground of default in the
payment of rent. The learned trial Judge also directed the defendants to pay
arrears quantified at Rs 27,887.10. Aggrieved by the decree for eviction, an
appeal was instituted before the High Court. The High Court noted that the
principal ground of challenge was that a spouse of a deceased tenant is
entitled to life time protection from eviction in respect of premises let out for
non-residential purposes under Section 2(g) of the Act.
The High Court framed the following two points for determination:
“i. Whether the spouse of a deceased original tenant is entitled
to life-time protection from eviction in respect of premises let out
for non-residential purpose; and
ii. If the answer to the first legal issue is against the spouse,
whether such spouse has a right to have a fresh agreement
executed in such spouse's favour, on condition of payment of fair
rent, in respect of the premises let out for non-residential
purpose”
The premises were let out for non-residential purposes within the
meaning of Section 3(f) of the Act. The premises lie within the limits of the
Calcutta Municipal Corporation and the monthly rent was not more than Rs
10,000. The issue which arose for consideration was whether the
appellant could be regarded as a tenant or whether as a spouse of the
deceased tenant, the appellant was entitled to be included within the
extended meaning of the expression “tenant” in Section 2(g).
Section 2(g) provides as follows:
"2. Definitions. - (g) "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 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 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 dependant 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 dependant 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 to premises let out for non-
residential purpose."
The High Court rejected the claim of the appellant to be entitled to a
special right as the spouse of the deceased – original tenant. This was
because, in the view of the High Court, the first proviso would not apply to
premises let out for non-residential purposes and, more importantly, the
spouse of an original tenant has not been conferred with any right under
the second proviso which applies to premises let out for non-residential
premises. Having said this, the High Court noticed that where the tenancy
is of residential premises, the spouse of an original tenant will continue to
enjoy the protection under the statute irrespective of the number of years
that may have elapsed after the death of the original tenant, so long as
such a spouse was ordinarily residing with the original tenant till the death
of the tenant, as a member of the family; was dependant on the original
tenant; and did not own or occupy any residential premises. On the other
hand, only the children, parents or the widow of a pre-deceased son of the
original tenant, were given limited rights in respect of non-residential
premises under the second proviso to Section 2(g), subject to their fulfilling
the same criteria. The High Court noted that the spouse of a deceased –
original tenant is, however, not accorded such a right under the second
proviso. This, it held to be “a colossal case of casus omissus”. The last
sentence of the second proviso to Section 2(g) specifies that it would apply
mutatis mutandis to premises let out for non-residential purposes. The
operation of the first proviso was held to be barred in respect of premises
let out for non-residential purposes. The High Court observed that the
case of a spouse may have been overlooked by the legislature in respect
of premises let out for non-residential purposes. But, it observed, such an
omission could not be “corrected by judicial engineering of a statutory
provision”. The correction of the mistake, if any, would have to be effected
by the legislature by an amendment.
On the above reasoning, the High Court answered the points, which it
had framed, in the following terms:
“i. The spouse of a deceased tenant is not entitled to protection
from eviction in respect of premises let out for non-residential
purpose beyond the period of five years from the date of death of
the original tenant if such original tenant died after the coming
into force of the Act of 1997.
ii. The spouse of a deceased original tenant does not have any
right to have a fresh agreement executed in such spouse's
favour in respect of any premises let out for non-residential
purpose if the decree-holder landlord wishes to let out the
premises afresh upon obtaining the decree or possession of the
premises pursuant to the decree.”
Finding no merit in the appeal, the High Court affirmed the judgment
of the Trial Court.
The issue which falls for determination in the present appeal turns
upon the interpretation of provisions of Section 2(g). The initial part of
Section 2(g) defines a tenant to mean 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
the termination of the tenancy. The latter part of the definition deals with
the devolution of the tenancy on the death of a tenant. It specifies that
when a tenant dies, the expression also includes, for a period not
exceeding five years from the date of death (or from the date of coming
into force of the Act, whichever is later), the spouse, son, daughter, parent
and the widow of a pre-deceased son who fulfill the following conditions:
(i) The individual should have ordinarily been living with the tenant
up to the date of the death as a member of the family;
(ii) The individual should have been dependant on the tenant;
and
(iii) The individual should not own or occupy any residential
premises.
In other words, in relation to residential premises, the protection of a
tenant is extended for a period not exceeding five years from the date of
death to the spouse, son, daughter, parent and widow of the pre-deceased
son, subject to the fulfilment of the above conditions. Where the premises
have been let out for non-residential purposes, the protection also extends
to the spouse, son, daughter and parent who were:
(i) Ordinarily living with the tenant up to the date of death as
members of the family; and
(ii) Dependant on the tenant or a person authorised by the tenant
who is in possession of the premises.
The effect of the first proviso is that the time limit of five years is not to
apply to the spouse of the tenant who was ordinarily living with the tenant
up to his death as a member of the family and, besides being dependant
on him, does not own or occupy residential premises. Thus, in the case of
residential premises, the time limit of five years is not applicable to the
spouse of the deceased-tenant who fulfills the requirements which have
been specified. The limit of five years does not apply to a spouse where
the premises are residential. Under the second proviso, a right of
preference for tenancy is granted in a fresh agreement in respect of the
premises, subject to the condition of payment of fair rent. The right is
granted in favour of a son, daughter, parent or widow of a pre-deceased
son of the tenant who was ordinarily residing with the tenant in the
premises up to the date of death as a member of the family and was
dependant on the tenant and who does not own or occupy any residential
premises. However, the legislature, while enacting the second proviso,
has not included the spouse of a deceased-tenant in recognizing a right of
preference for tenancy in a fresh agreement in respect of the premises.
The last sentence of the second proviso states that it shall apply mutatis
mutandis to premises let out for non-residential purposes. Thus, both in
the case of residential as well as non-residential premises, a provision has
been made in the second proviso under which a right of preference is
granted to stipulated heirs of the deceased-tenant where a fresh
agreement is to be entered into in respect of the premises. The effect of
the second proviso is that the legislature has not recognized the
entitlement of the spouse while conferring a right of preference for tenancy
in a case of a fresh agreement. The High Court was correct in observing
that this is a case of casus omissus on the part of the legislature. This is
evidently an inadvertent omission. The exclusion of a spouse of a
deceased tenant is without rationale, discriminatory and deprives the
surviving spouse of a valuable entitlement granted to the other heirs.
There is a valid justification for amending the provision so as to bring the
widow within the ambit of the second proviso. This is a matter which, in
our view, deserves to be considered by the legislature. Having due regard
to the object and purpose underlying the recognition of a right of
preference under the second proviso and the social welfare purpose
underlying the enactment of the legislation, it would be appropriate if this
aspect is considered. The recognition of a right of preference by the
second proviso is intended as a measure of protection for the heirs of a
deceased tenant and it would but be appropriate and proper if the same
protection which is extended to a son, daughter, parent or widow of a pre-
deceased son in the matter of a fresh agreement of tenancy is also
recognized to inhere in the spouse of a deceased-tenant. The High Court
was right in coming to the conclusion that this would require a substantive
amendment to the second proviso since it is not open to the court to
introduce words in the second proviso which have the effect of including
one class of heirs, namely, a spouse of a deceased-tenant whom the
legislature has left out of the terms of the second proviso. Absent such a
protection, the spouse of a deceased tenant would be left without the
protection which is conferred upon the son, daughter, parent or widow of a
pre-deceased son. There would appear to be no justification for not
considering the grant of such a protection on the spouse of the original
tenant. We hope and trust that this aspect of the omission in the second
provisio will engage the attention of the law makers so as to fulfill the
salutary purpose of the provision.
Insofar as the present case is concerned, the appellant has continued
to occupy the premises for a period in excess of seventeen years after the
death of the tenant. Learned counsel for the landlord stated before this
Court that the landlord does not intend, in any case, to execute any fresh
tenancy. Having due regard to the judgment of the Trial Court which has
been affirmed by the High Court, we see no reason to entertain the appeal
insofar as the decree for eviction is concerned. However, we grant time to
the appellant to vacate the premises until 30 June 2020 subject to the filing
of the usual undertaking in the Registry of this Court within a period of four
weeks from today failing which the decree shall become executable
forthwith. A copy of this judgment shall be forwarded to the Chief
Secretary of the State of West Bengal.
The appeal is accordingly disposed of. There shall be no order as to
costs.
[Dr Dhananjaya Y Chandrachud]
[Ajay Rastogi]
New Delhi; November 26, 2019
Petition(s) for Special Leave to Appeal (C) No(s).1836/2019
(Arising out of impugned final judgment and order dated 19-12-2018 in FA No. 162/2018 passed by the High Court at Calcutta)
NASIMA NAQI Petitioner(s)
VERSUS
TODI TEA COMPANY LTD. & ORS. Respondent(s)
(WITH I.R. and IA No.9882/2019-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT)
Date : 26-11-2019 This petition was called on for hearing today.
For Petitioner(s) Mr. S. K. Bhattacharya, AOR
Mr. L.K. Paonam, Adv.
Mr. Niraj Bobby Paonam, Adv.
Mrs. Tomthinnganbi Koijam, Adv.
For Respondent(s) Mr. Ashok Kumar Jain, Adv.
Mr. Amar Dave, Adv.
Mr. Bijoy Kumar Jain, AOR
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The appeal is disposed of in terms of the signed
reportable judgment. There shall be no order as to
costs.
Pending application, if any, stands disposed of.
(Signed reportable judgment order is placed on the file)