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Published : May 23, 2016 | Author : Nikunj Keyal
Category : Real estate laws | Total Views : 1364 | Rating :

  
Nikunj Keyal
Nikunj Keyal A law Student
 

Protection of Tenants Against Eviction

About 42% of the urban population of the world, which are roughly 150 million households, lives as tenant. The same holds true even in India where, due to exorbitant rates of property especially in the metro cities, a majority of people live as tenants. While living as a tenant can be really comfortable, there are times when once can face rental issues and other related problems like getting an unwarranted eviction notice. However, Indian Laws has several provisions that protect the rights of a tenant.

The right to be saved from eviction that is not justified or authorized and which is unreasonable is the most important right available to a tenant. Each of the State’s in the country has their own State has laid down particular grounds in view of which a landlord can evict a tenant. Eviction of a tenant on any ground other than the ones mentioned in the State Acts is not considered to be sufficient for eviction. Further, the said State Acts additionally give the tenants the privilege to assurance for a situation where the landlord powerfully evict the tenant for a reason not determined in the Act.

Landlord Filing Case For Eviction of False Grounds:

In numerous cases, it is seen that the landlord may file a notice of eviction on false grounds. For example, the landlord may evade the receipt of rent for a month and then use the same fact of willfully failing to pay rent as a ground to evict the tenant. However, in such cases also, the Rent Control Act can provide remedy to the tenant

Remedy Against False Cases:

The following steps can be taken for challenging the false eviction notice:

The tenant should approach the Rent Controller giving her/his reasons.
Once the tenant is summoned by the Court, he/she will be required to put forth her/his case with adequate evidence for support. The following points can come in handy while accumulation of evidence:
Notice to Receive Rent: If the landlord fails to receive the rent deposited by the tenant, he/she should issue a notice in writing that asks the landlord to specify a bank for depositing the rent within ten days of receiving the notice. The notice should clearly mention the non-receipt of the rent on the part of the landlord and the option that one is exercising as a tenant. If the bank details are received within ten days, the tenant should deposit the rent as soon as possible.

Money Order: If the landlord fails to reply to the above notice, the tenant must directly send the rent to the landlord via Money Order. The Money Order coupons should be kept safely as proof of payment of rent. In the landlord receives the Money Order, the tenant should continue the payment in the same mode.

Petition in Court: in the landlord refuses to accept the Money Order as well, the tenant should file a petition before the appropriate court and get the court order to deposit future rents in the court

West Bengal Premises Tenancy Bill

The State Assembly has passed on 26th November 1997 The West Bengal Premises Tenancy Bill, 1996, after its modification has passed by the Select Committee, making contracts legally binding on tenants beyond certain rent cut-offs.
As the new legislation develops out of the Bill, it will apply to residential and commercial tenants in equal measure. The Bill makes it easier for the landlord to evict a tenant when he needs the premises for his own use if he does not have suitable accommodation in the same area. Other than this, however, eviction remains as difficult as before for landlords whose tenants are not on contract.

Charter of Rent

Eviction:

1. When the contract expires and is not renewed , tenants should vacate within a month .
2. If a tenant dies, his direct legal heirs living with him or dependent on him can stay on only for five years.
3. Landlord can evict tenant for his own accommodation. Landlord can claim immediate possession if he is a retired government employee of an ex-serviceman.
4. A tenant can be evicted if he fails to pay rent for three months in a year.
5. Subletting or immoral use of premises will invite eviction.

Charges:

· Tenants should pay maintenance and amenities charges at the rate 10 percent of the rent .
· Landlord cannot demand amounts exceeding a month’s rent without the permission of the rent controller.
· If landlord cuts off any essential supply or service, he may have to pay damages of Rs.5,000 to the tenant.

Protection of Tenants Against Eviction:

If you’re a landlord and want to evict a tenant, you need to have a legal reason for doing so. In other words, you can’t evict a tenant just because you don’t get along with them or because they’re a little messy. And while laws are in place to keep folks in the property they’re renting, there are few common reasons you can evict a tenant in nearly every state.

Section 6 of the West Bengal Premises Tenancy Act, 1977 deals with the Protection of Tenants Against Eviction.

It states that - (1) Notwithstanding anything to the contrary contained in any other law for the time being in force or in any contract, no order or decree for the recovery of the possession of any premises shall be made[by the Civil Judge having jurisdiction] in favour of the landlord against the tenant, [except on a suit being instituted by such landlord] on one or more of the following grounds:—

(a) Where the tenant has sublet, assigned or otherwise parted with the possession of whole or any part of the premises without obtaining the consent in writing of the landlord or 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;

(b) Where the tenant has made default in payment of rent for three months within a period of twelve months, or for three rental periods within a period of three years where the rent is not payable monthly;

(c) Where the premises is required by the landlord for the purpose of building or rebuilding or for making substantial addition or alteration thereto and such building or rebuilding or substantial addition or alteration cannot be carried out without the premises being vacated;

[(d) 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 kilometers from such premises where this Act extends;]

(e) Where the tenant has given notice to quit but has failed to deliver vacant possession of the premises to the landlord in accordance with such notice;

(f) Where 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), clause (o) or clause (p) of section 108 of the Transfer of Property Act, 1882 (4 of 1882);]

(g) 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;

(h) Where 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;

(i) 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 neighbors including the landlord;

(J) 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; 15[Explanation.—This clause shall not apply to premises let out for nonresidential purpose and used for commercial purpose:]

(k) 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 (Litigation) Act, 1925 (4 of 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.

(l) 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 16[ten months] and keeps the premises under lock and key.

(2) Where a landlord has acquired his interest in the premises by transfer, no 17[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.

(3) 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 subtenant 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 the 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 the subtenant. The rent so fixed shall be deemed to be the 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.

(4) 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.

(5) 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.

Synopsis of The Section 6 of The West Bengal Premises Tenancy Act, 1977:

1. Consent in Writing: The tenant in entitled to protection from eviction if he can prove that for creating the sub-tenancy there was a written consent of the landlord. It excludes any other consent, namely, oral consent or implied consent . In Shalimar Tar Products Ltd. V H.C. Sarma the Supreme Court on construing the similar provision in s. (14)(b) of the Delhi Rent Control Act 1958 has held that consent must be in writing and the specific sub–letting. The Supreme Court has made it clear that it is necessary for the tenant to obtain consent in writing and must be in respect of the specific sub-letting.

2. Keeping Paying Guest: The Calcutta High Court held in Santosh Vs Sachindra that when the tenant began to keep paying guest in the premises let out for residential purpose without the written consent of the landlord, he contravened S.13(1)(h) of the W.B. Premises Tenancy Act,1956. The Supreme Court has however overruled the said decision holding that such a plea was not sustainable on merits. It has also been held that when no such plea was taken either before the trial court or before the appellate court, the High Court was not justified in raising such plea for the first time in second appeal and holding that the tenant keeping one or two paying guest has contravened Section. 13(1)(h) of the W.B Premises Tenancy Act,1956.

3. Default barred by Limitation: The landlord can seek eviction on the ground of default that the tenant is in default of a rent for a period of three years prior to the institution of the suit. The tenant cannot take the plea as arrears of rent for a period beyond three years of the suit is barred by limitation, the landlord cannot seek eviction on the ground that the tenant is in default of payment of rent for a period of more than three years prior to an institution of the suit.

4. Building and Rebuilding Cases – Duty of The Court: All that the landlord is called upon to show is that he is genuinely building and rebuilding and in doing so he reasonably requires eviction of the tenants. There is no law by which the court can direct the landlord to alter his plans or to allow the tenants to make alterations in the building. It has no right to direct the landlord to construct new structures and let it out to the tenants. All that the court is required to do is to satisfy its conscience that the proposed building and rebuilding is not a ruse to get rid of his existing tenants.

5. Requirement in Future: Where requirement was likely to arise in 1973, but the proceeding for eviction was filed in 1969 on the ground of requirement, the eviction proceeding was neither premature nor liable to be rejected as being too early. An Existence of need on the date of application but in foreseeable future is sufficient.

It has been held by the High Court of Himachal Pradesh that a landlord can seek eviction of his tenant proving his need for accommodation in the foreseeable future. Similar is the view of the Mysore High Court.

6. Consent of The Landlord: When the tenancy was taken for residential purposes, the conversion of the premises to run a printing press from there amounts to the change of user. It is contended by the tenant that there was consent of the landlord and as a proof of consent it is contended that the landlord had signed the vouchers prepared by the tenant from the letter head of the press or receive the rent and consequently the landlord waived the change of user or that it was let out for running a press business. But the lease deed specifically stipulated that the lease was for the residential purpose. Only because the landlord signed the vouchers in the letter pad of the press to receive the rent does not amount to waiver or acquiescence.

7. The Procedure to be adopted by The Civil Judge In Connection With The Suit or Eviction Under The Act: Section 6(1) as originally enacted entrusted upon the Rent Controller to entertain an eviction proceeding by a landlord against a tenant. It was to be by way of application and Rule 5 of the West Bengal Tenancy Premises Rules 1999 prescribed the procedure as well as the contents of such application. By West Bengal Premises Tenancy (Amendment) Act 2005, the said jurisdiction has been conferred upon the Civil Judge having jurisdiction. But there was no change as to the manner in which the same was to be disposed.

8. Permanent Structure: Construction of a surface drain, making many holes to the water pipe fitting through them, driving angles in walls for supporting a 20 gallon water reservoir, construction of pucca masonry wall upon the floor of the Verandah by digging open a part of his floor, conversion of a substantial part of the open verandah into a closed room, making of pucca construction to serve as receptacle of refuse matters are acts in contravention of Clause (p). Construction of pucca structure having walls of brick with cement joining consisting of two rooms separated by verandah etc. come under Clause (p). Unauthorized construction of a room with brick and cement with title shed on the roof of the tenanted premises is permanent structure.

9. Partial Eviction- Relevant Considerations: At the initial stage the court has to consider first as to whether the landlord required the premises reasonably. It can allow partial eviction on being satisfied the partial eviction will substantially satisfy the need and requirement of the landlord. Even if the landlord seeks eviction of the whole premises the court is to consider that aspect of the case and even if the tenant did not advance any pleading to that effect. After such finding the court should ascertain if the tenant is agreeable to the partial eviction and if the tenant agrees it should proceed in accordance with Section 13(4) of the Act notwithstanding no such plea has been raised by the tenant.

10. No Special Rights for Long Term Tenants: A tenant no matter how long he has been in possession of the residential or a commercial place, it does not give him any special right or any protection from saving himself from being evicted by the landlord. If the landlord succeeds proving to the court of law that he needs it for his own use or occupation, the court will direct the tenant to evict the said premises of the landlord.

11. Eviction from a Commercial Place: A tenant can be evicted not only from residential premises but also commercial premises to meet the bona fide requirement of the landlord for his own use or occupation. Any such discrimination Vis-à-vis residential and nonresidential premises would lead to violation of Article 14(Equality Before Law) of the Constitution of India.

In was also by way of application. But when the West Bengal Premises Tenancy (Amendment) Act 2006 has provided the eviction of a premises tenant under the Act shall be by a suit, then all the persons of CPC relating to the pleadings, the procedure for filing the suit filing of written statements and other relevant procedure become applicable. It is to be entertained as a civil suit to which all the provisions of CPC shall be attracted.

Conclusion:
The Legal eviction of tenants had always been of a great concern. In Initial days the landlord misused their powers and get used to illegally evict the tenants from their premises. But from last few decades,the law has given some specific protection to the tenants – Protection of Tenants from Eviction. The court see into the matter and are to judge and pass an order only after looking into the genuine requirement of the landlord for his own use or occupation. Almost all the states of the country has similar provisions and has given similar rights to the tenants against illegal eviction.

Bibliography:
1. The West Bengal Premises Tenancy Act, 1956 – Tenth Edition. Eastern Law House Publications.
2. The West Bengal Premises Tenancy Act, 1997- 2008 Edition. Eastern law House Publications.
3. The Property Law of India – Indian Law Series.
4. Code of Civil Procedure – Universal Publications.
5. http://accommodationtimes.com/west-bengal-premises-tenancy-bill/comment-page-1/
6. http://zeenews.india.com/news/nation/tenant-can-be-evicted-from-commercial-premises-also-sc_593691.html
7. http://timesofindia.indiatimes.com/india/Long-tenancy-no-protection-from-eviction-SC/articleshow/3491478.cms
# Subs. By the West Bengal Premises Tenancy (Amendment) Act 2005.
# Subs. By the West Bengal Premises Tenancy (Amendment) Act 2006.
# Subs. By the West Bengal Premises Tenancy (Amendment) Act 2002 [w.e.f.10.07.001.]
# Kartar Singh V Vijay (1978) 1 RCJ 264.
# AIR 1988 SC 145; (1988)1 SCC 70; (1988) 1 SCJ 358.
# 86 CWN 933
# Bhim Sen Gupta V Biswanath Prosad Gupta AIR 2004 Sc 177; 2004 AIR SCW 971 JT 2004(2) SC 309; 2004(2) Scale 394.
# Manohar Vs Raj Mohan 72 CWN 393; Hahneman V Dinesh 77 CWN 432; AIR 1972 Cal 484; Shadi Singh V Rakha (1992)3 SCC 55; (1992)2 RCR; (1992)1 RCJ 502.
# Padma V M. Raghu 1975 RCJ 10 SN.
# J.G. Kohli V The Financial Comr. AIR 1976 Punj 107.
# Ram Singh V Sagar Chand AIR 1977 HP 21
# Padma Ramoomurthy V ROghu (1973)2 Mys LJ 564.
# Rai Chand Jain V Chandra Kanta Khosla AIR 1991 SC 744; (1991)1 SCC 422.
# Section 108 of The Transfer of Property Act, 1882.
# Section 108 of The Transfer of Property Act, 1882.
# S.N. Tagore V B.M. Gupta 92 CWN 758.
# Parul Das Gupta V D.K. Ghosh (1987)2 RCJ 145 (CAL)




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