Calcutta High Court (Appellete Side)
Sri Sushil Kumar Jain & Ors vs Pilani Properties Limited on 29 November, 2017
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
1 3 29.11.2017
SAT 276 of 2017 with gd CAN 8462 of 2017 Sri Sushil Kumar Jain & Ors.
Vs. Pilani Properties Limited Mr. Somnath Saha Mr. Kaushik Saha ..for the Appellants No question of any substance, particularly on law, is raised by the appellants in seeking to challenge an appellate judgment and decree confirming a decree of eviction.
The essential facts must first be noticed. It is not in dispute that the tenancy was originally created in favour of one K.C. Jain in the year 1976. K.C. Jain died in the year 2000, prior to the West Bengal Premises Tenancy Act, 1997 coming into operation. K.C. Jain was survived at the time of his death by wife Sushila and his three sons who are the appellants herein. He had also three daughters, Puspa, Rekha and Asha, who were married and the evidence shows that they stayed at their individual matrimonial homes and did not reside with K.C. Jain at the time of the original tenant's death.
The rent or occupation charges for the decretal 2 premises was last increased some time in 2008. The consolidated rent charged was Rs.6815/- per month. There is no dispute on this score and the concurrent findings of the courts below do not permit the factual position to be reopened. However, the appellants seek to assert that the rent component comprised the municipal rates and taxes paid to the Corporation; the contention is that such amount as goes on account of municipal rates and taxes has to be deducted from the quantum of rent to arrive at a figure which would conform to the threshold of rent for the purpose of the Act of 1997.
Two primary grounds are urged by the appellants and are sought to be put forth as substantial questions of law requiring a protracted consideration by this court. They assert that the courts below erred in holding that the tenancy was governed by the Transfer of Property Act, 1882 and not by the Act of 1997 only because Section 3(e)(i) of the Act of 1997 recognises the upper limit of residential rent to be Rs.6,500/- per month. The appellants also claim that since their father died prior to the 1997 Act coming into effect, at the time that the 1997 Act became effective their mother and the 3 three appellants were all joint tenants and the subsequent death of their mother in 2009 could not have given any cause of action to the landlord to seek the appellants' eviction.
In support of such grounds, two judgments of this court have been brought. The judgment reported at (2016) 2 Cal LT 526 (EIH Limited v. Nadia A Virji) has been cited in aid of the appellants' contention that the component of rent that goes towards municipal rates and taxes must be disregarded to assess whether the threshold amount as envisaged in Section 3(e)(i) of the Act of 1997 is breached. The other judgment, also rendered by a single bench and reported at (2013) 1 CHN (Cal) 336 (Goutam Dey v. Jyotsna Chatterjee), is placed for the proposition that a right that may have vested under the West Bengal Premises Tenancy Act of 1956 could not be taken away by the Act of 1997.
In the first of the cases cited, it is evident from the initial paragraphs of the report that the defendant in that case was inducted as a monthly tenant at the Oberoi Grand Hotel arcade at a rent of Rs.10,000/- per month. The tenant was also liable to pay municipal rates and taxes amounting to Rs.18,622/- per quarter. 4 The tenanted premises was used for commercial purpose. The single bench held that "Any amount, which is variable in nature and depends upon certain contingencies cannot be characterised as rent" though in the previous sentence it was held that the definition of rent "in its wider sense not only includes the basic rent but also the other amount payable by the tenant in lieu of amenities and facilities attached to the tenancy and may further include the maintenance/service charges and municipal tax and commercial surcharge which is a statutory obligation." In any event, as is evident from the terms of the relevant agreement set out in the report, the quantum of rent for the tenanted premises used for commercial purpose was not in excess of Rs.10,000/-. The relevant expression in Section 3(f)(i) of the Act of 1997 is "... which carries more than 10,000/- rupees as monthly rent ...". Without going into the correctness of the other aspects considered in the said judgment, the very fact that the agreed rent in that case did not take the matter beyond the purview of the 1997 Act must be regarded to be the basis of the decision.
As to the judgment in Goutam Dey, paragraph 20 5 of the report has been placed:
"Even otherwise, I am of the further view that portion of Section 2(g), as extracted in the proceeding paragraph starting from "or" and ending with "later", and on which Mr. Bhattacharya laid emphasis, if read literally would produce absurd results and, therefore, the provision must be so read so as to make it meaningful. Law is well settled that in exceptional circumstances, it would be proper for the Court to depart from the literal rule and such rule of interpretation could be adopted that is just, reasonable and sensible, and does not offend the sense of justice. In the context, one may possibly conceive either of three inevitable situations, - death of a tenant (i) before July 10, 2001; (ii) after July 10, 2001; and (iii) on July 10, 2001. Regarding situation (i) i.e. death of a tenant before July 10, 2001 and the case with which I am concerned (Sunil died on May 4, 1997), undoubtedly it was the Act of 1956 that was in force and had a tenant governed by the provisions of the Act of 1956 died on July 9, 2001 or even previous to that date, the tenancy would be governed by that Act meaning thereby that the tenancy being heritable, the heirs would be justified in claiming tenancy right subject to fulfillment of the residence requirement in Section 2(h) of the Act of 1956 but unfettered by the other two conditions newly inserted and the stipulation of five years in Section 2(g) of the Act of 1997. Law appears to be settled that provisions of a new statute which touch a right in existence at the date it is enforced are not to be applied retrospectively in the absence of express provision or necessary intendment. The Act of 1997 has not been given retrospective effect so as to bring within its coverage death of tenants occurring prior to July 10, 2001 and a different intention does not appear on a reading of the Act of 1997 so as to affect any right or privilege that has been acquired or has accrued in favour of the specified heirs of the deceased tenant under the Act of 1956, since repealed. Having regard to Section 8(c) of the Bengal General Clauses Act, 1899, a 6 vested right that accrued in favour of an heir like Subhra on the death of the tenant i.e. Sunil cannot be abrogated. There is a presumption against curtailment of or washing away a vested right by a repealing legislation, and a construction involving such curtailment of or washing away the right accrued ought not to be adopted unless a contrary intention clearly appears in the repealing legislation. It could not have been and it does not seem to be the intention of the legislature to fix July 9, 2006 as the last date till which tenancy of an heir of a deceased tenant would continue (assuming all the other conditions were fulfilled), no matter when he died prior to July 10, 2001. The absurd result that the aforesaid extract of Section 2(g) of the Act of 1997 has the potential of producing is best illustrated by the facts of the present case and needs no further elaboration. Insofar as situations (ii) and (iii) are concerned, it is obvious that the definition of tenant in Section 2(g) of the Act of 1997 shall apply and for achieving the purpose that it seeks to achieve, it was not necessary to insert the phrase "or from the date of coming into force of this Act, whichever is later". The period of five years mentioned in Section 2(g) automatically would have application only in respect of death of tenants occurring on and from July 10, 2001 and in such case the portion extracted above, is in my considered view, a piece of loose drafting and ought to be considered redundant unless in a given case, which I have been unable to perceive, the same is shown to have application. I hasten to record here that the above observation regarding redundancy has been made by me despite my best effort to make the statute effective with all the words that have been used by the legislature and conscious of the principle that legislature is presumed not to waste words."
In the case of Goutam Dey the original tenant died intestate in 1997 and was survived by his daughter as his sole heir. Such daughter died on March 20, 2011 7 leaving behind the petitioner Goutam Dey, her husband, as her sole heir. On April 20, 2011 a suit was instituted by the landlords, in effect, seeking a declaration that Goutam Dey was a trespasser. Goutam Dey instituted a counter-suit claiming that his deceased wife had been inducted as a monthly tenant in respect of the suit premises. Goutam Dey sought a declaration that he was entitled to continue as a lawful tenant in possession of the tenanted premises.
The single bench referred to the definition of tenant in Section 2(h) of the West Bengal Premises Tenancy Act, 1956 at paragraph 16 of the report and compared it with the corresponding definition in the successor statute in Section 2(g) thereof. The single Bench then concluded that in view of Section 2(h) of the Act of 1956 the monthly tenancy was heritable and, as to the effect of Section 2(g) of the Act 1997 Act, opined as noticed at paragraph 20 of the report quoted above.
Both the 1956 and the 1997 Acts carve out an exception from the general law governing the land and accord protection to the classes of persons as specified in such statutes. Contrary to the natural right of the owner of any immovable property or a landlord to be 8 governed by a contract with the tenant and to have a right to evict the tenant in accordance with the provisions of the Transfer of Property Act, 1882, the statutes of 1956 and 1997 protect certain classes of tenants from the whims of their landlords. Though a tenant was defined in Section 2(h) of the 1956 Act and is now defined in Section 2(g) of the 1997 Act, the definition did not and does not confer any protection on the tenant; the definition was and is only for the purpose of identifying the persons or classes of persons sought to be given protection by the statute. It is also elementary that just as some persons can be accorded special protection by a statute, particularly a rent control legislation, such protection can also be varied or even taken away completely by subsequent legislation. As to the classification of the persons, the statutes of 1956 and 1997 had or have territorial or pecuniary considerations or both. The real protection was accorded to the tenants by Section 13 of the 1956 Act and is now guaranteed under Section 6 of the 1997 Act. There were and are other provisions, ancillary to such primary provisions, that extended or extend the rights and covered or cover attendant circumstances; but the 9 core of the rights or protection granted or accorded to the tenants under either statute was or is under the aforesaid primary provisions.
The 1997 statute replaced the 1956 legislation and changed the fundamental bases in certain cases. Just as certain classes of tenants have been given protection under the 1997 statute, the landlords of certain classes of tenants have been freed from the claustrophobic clutches of the 1956 Act.
Though the present matter primarily hinges on the quantum of rent paid for the residential tenancy by the appellants herein or their predecessor-in-interest, the appellants insist that since the death of father K. C. Jain, the original tenant, in the year 2000 was anterior to the 1997 Act coming into effect on July 10, 2001, a right vested in the joint tenants under the 1956 Act which could not have been taken away by the 1997 Act. Such contention amounts to suggesting that when a rent control legislation creates or confers a right, it cannot be curtailed by a subsequent legislation. Such contention is exceptionable and cannot be countenanced. In a sense, the contention amounts to this: that if the original tenant died prior to the 1997 10 Act coming into force, the heirs of the original tenant who were covered by the definition of "tenant" in Section 2(h) of the 1956 Act would have to be regarded as original tenants within the meaning of the expression in Section 2(g) of the 1997 Act. Clearly, such an interpretation is impermissible and absurd.
The legislative intent behind the 1997 Act was to raise the bar, so to say, and only protect tenants in respect of residential properties who did not pay more than Rs.6,500/- per month as rent in the Kolkata and Howrah Municipal areas. For a tenant who pays rent for any residential tenancy upto Rs. 6,500/- per month in such area, he would be entitled to the protection under Section 6 of the Act of 1997 and the ancillary provisions as Section 7 and the like would come into play if proceedings are brought in a civil court for his eviction. However, for tenants who pay in excess of Rs. 6,500/- per month in such areas for any residential tenancy, the protection is no longer available under the 1997 Act; though such consideration was not a basis for according protection under the 1956 Act.
The alteration in the class or classes of persons who are afforded protection under the 1997 rent control 11 legislation reflects a change in policy. It is fundamental that courts do not sit in judgment over policy decisions reflected in legislative enactments, as long as the statute conforms to the constitutional sense of morality. Courts interpret the provisions of a statute on the basis of the literal meaning that they convey and, if the literal interpretation results in absurdity or gross injustice, the overarching purpose of the statute, the mischief that it seeks to remedy or the benefits that it seeks to confer are factors taken into consideration for a purposive construction, where such purposive construction can never be in conflict with the policy of the legislation as long as such policy does not fall foul of the lex suprema.
In a scenario where the class of persons accorded protection by a previous statute is altered in a subsequent or successor statute, there is a matter of policy behind such decision. When a question of interpretation arises, the court has merely to see what the words used mean in the context of the statute.
Section 2(h) of the Act of 1956 could not be read to imply that upon the death of the original tenant those residing with him at the time of his death were 12 ipso facto entitled to some form of protection. Section 2(h) only defined who could be regarded as a tenant; for the protection that such tenant may enjoy, one had to refer primarily to Section 13 of the Act of 1956 and the related provisions.
Seen in such light, it is Section 2(g) of the Act of 1997, which makes a departure from Section 2(h) of the predecessor statute, that will govern the definition of a tenant after the 1997 Act has come into effect. At the time of the consideration, only if a person claiming to be a tenant conforms to the definition in Section 2(g) of the 1997, will he be regarded as a tenant.
In other words, merely because K.C. Jain died in the year 2000, prior to the 1997 Act coming into effect, would not imply that some right under the 1956 Act vested in the heirs of K.C. Jain which could not be undone.
The underlying logic of the judgment in Goutam Dey is that if a right vests in a person under a statute, the same cannot be undone. As a proposition of law it may sound attractive, but it will not hold good in all cases. While it is true that certain rights if they vest under a predecessor statute cannot be undone by a 13 successor statute, the purpose of the statutes, the nature of the rights and the extent of the vesting of such rights are relevant considerations.
The 1956 Act provided for a degree of protection to certain classes of tenants in this State. In course of time, the legislative wisdom provided for a relaxation in the norms such that the protection was limited to a smaller class of persons and in certain specified situations by the Act of 1997. It cannot be said, for instance, that merely because a tenancy had been created prior to the 1997 Act, the protection enjoyed under the 1956 Act would continue even after the 1997 Act has come into operation. The 1997 Act does not admit of such a situation. A person who paid rent of Rs.10,000/- per month for a residential accommodation was also entitled to protection under the 1956 Act. Such person is no longer entitled to protection under the 1997 Act. The fact that he once enjoyed protection under a previous statute is no ground for him to urge that the successor statute would not apply to him or that he cannot be excluded from the purview of the protection accorded to him by the predecessor statute. Thus, whether or not the original tenant died prior to 14 the 1997 Act coming into operation, it makes little difference.
At the time that the present suit was instituted, the appellants herein were not entitled to any protection under the 1997 Act, whether by virtue of the monthly rent they paid or as heirs of the original tenant. If the rights that seemingly vested in a tenant under 1956 Act can be taken away by prescribing a ceiling limit of rent, the rights that apparently vested in the heirs of the original tenant may be abridged by a successor statute without there being any arbitrariness about the matter. A level of protection once granted has been diluted and several persons entitled to such protection under the old law are no longer accorded such protection under the new law. That is the long and short of the 1997 Act qua the 1956 Act and there is nothing arbitrary in the policy decision reflected in the new enactment.
It must also be added that courts ought to be very cautious before finding words used in the statute to be otiose or meaningless. The intention of Section 2(g) of the 1997 Act is to regard heirs of the original tenant who were dependent on him and were residing with him at the time of his death as tenants for a period of five 15 years. That would imply that for a period of five years from the death of the original tenant, the heirs of the original tenant who were dependent on the original tenant and were residing with him will be entitled to the same protection under Section 6 of the 1997 Act as the original tenant. However, such umbrella of protection is removed upon the conclusion of the fifth year from the date of death of the original tenant, in case the original tenant died after the 1997 Act came into effect. For the similar heirs of the original tenants who had died prior to the 1997 Act coming into force, a period of five years was counted from the date of the 1997 Act coming into operation.
It was a policy decision taken by the legislature to afford a five-year period for the dependents of the original tenant who ordinarily resided with him at the time of his death to make alternative arrangements. To ensure that all such heirs of the original tenant had the same time period to make alternative arrangements, the clause "whichever is later" was introduced in Section 2(g) of the 1997 Act so that the heirs of the original tenant who had died prior to the 1997 Act coming into force did not have a shorter time to make such 16 alternative arrangements. That is the meaning and purpose of the expression, "whichever is later", in Section 2(g) of the Act.
There is a distinction between a right which is acquired or has accrued and a right to take advantage of a statute. The right of a tenant under a rent control legislation is not a right that vests in him forever, but a right that can be undone by subsequent legislation. The right that a tenant has is to take advantage of the rent control laws; but if a particular tenant or a class of tenants is removed from the protective shield of any rent control legislation by a subsequent enactment, such tenant cannot cry foul or claim that any inviolable right had vested in him under the previous statute. In any event, the rights of a tenant under a rent control legislation are protective rights and not vested rights since such rights suspend the rights of the landlord under the general law of the land; it is permissible for the protective rights to be varied and even for the classes of persons enjoying the protection to be altered.
The view expressed in Goutam Dey, of rights having vested in tenants under the 1956 Act being incapable of dilution by the repeal of such Act, is 17 unacceptable in the light of a long line of authoritative pronouncements of the Supreme Court, including the judgments reported at (1995) 1 SCC 104 (D. C Bhatia v. Union of India), (1999) 9 SCC 334 (Thyssen Stahlunion Gmbh v. The Steel Authority Of India) and (2004) 4 SCC 1 (Vishwant Kumar v. Madan Lal Sharma).
Section 8(c) of the Bengal General Clauses Act, 1899 is in pari materia with Section 6(c) of the General Clauses Act, 1897. In the context of rent control legislation, the right or privilege conferred by a statute to a tenant cannot be regarded as "acquired" or "accrued" rights within the meaning of the relevant words in the Bengal General Clauses Act or the General Clauses Act. At any rate, in the statement of objects and reasons of the 1997 Act indicating that there was a need to reform "the rent legislation in a way that balances the interests of both the landlords and the tenants", there is an express declaration of the rights of tenants covered by the previous legislation being diluted. There appears to be "a different intention", within the meaning of such expression as used in Section 8 of the Bengal General Clauses Act evident 18 from the change in law.
In the present case, neither contention raised by the appellants appeals. On the first count, the tenancy was not governed by the 1997 Act and the appellants were not entitled to any protection thereunder. A notice was issued under Section 106 of the Act of 1882 which was duly received and a reply thereto also issued by the appellants. In any event, even if the protection under the 1997 Act was available to this tenancy or the appellants, the fact that K.C. Jain died in the year 2000 and even his widow expired in 2009 prior to the issuance of the notice to quit by the landlords justify the landlord's stand, the institution of the suit and the decree passed by the trial court as affirmed by the judgment and decree of the appellate court.
In view of the aforesaid, since there does not appear to be any merit in the proposed second appeal, SAT 276 of 2017 and CAN 8462 of 2017 are dismissed.
There will, however, be no order as to costs. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities. 19
(Sanjib Banerjee, J.) (Sabyasachi Bhattacharyya, J.)