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IN THE HIGH COURT OF CALCUTTA
Dipankar Datta, J.
Goutam Dey - Appellants
Vs.
Jyotsna Chatterjee - Respondent
C.O. No. 3424 of 2011 with C.O. No. 3425 of 2011
Decided On: 18.01.2012
TENANCY - WEST BENGAL PREMISES TENANCY ACT, 1997 - SECTION 2(G) - INTERPRETATION - RETROSPECTIVE EFFECT - VESTED RIGHTS - TENANT'S DEATH BEFORE ACT'S ENACTMENT - HEIR'S RIGHT TO TENANCY - FIVE-YEAR LIMITATION - APPLICABILITY.
Fact of the Case:
Sunil Mukherjee was inducted as a tenant by Debabrata Chatterjee in a part of premises No. 9B, Ramesh Mitra Road, Kolkata. After Debabrata's death, his widow Jyotsna Chatterjee and son Subhas Chatterjee became joint owners of the premises. Sunil continued as a tenant under Jyotsna and Subhas till his death on May 4, 1997. He died intestate, leaving behind his daughter Subhra Dey (nee Mukherjee) as his sole heir. After Sunil's death, Subhra continued as a tenant in respect of the suit property. Subhra passed away on March 20, 2011, leaving behind her husband, Gautam Dey, as her sole heir. Jyotsna and Subhas instituted Title Suit No. 1144 of 2011 for declaration and injunction, alleging that Subhra became a trespasser in respect of the suit property with effect from June 2002 and Gautam has no right or authority to remain in possession thereof. Gautam instituted Title Suit No. 1155 of 2011, impleading Jyotsna as the sole defendant, claiming that he is the tenant in respect of the suit property and seeking a decree of permanent injunction restraining Jyotsna from obstructing his entry into the suit property and from dispossessing him from the suit property.
Finding of the Court:
The High Court held that the impugned judgments of the lower court, which ruled in favor of Jyotsna and Subhas and against Gautam, were unsustainable. The court found that the lower court misdirected itself in holding that Subhra lost her locus standi to occupy the suit property as a tenant five years after the death of Sunil. The court also held that the portion of section 2(g) of the West Bengal Premises Tenancy Act, 1997, which provides for a five-year limitation on the tenancy of an heir of a deceased tenant, is redundant and ought to be considered redundant unless in a given case, it is shown to have application.
Issues: 1. Whether the West Bengal Premises Tenancy Act, 1997 (Act of 1997) has retrospective effect and applies to the tenancy of Subhra, who inherited the tenancy from her father Sunil, who died before the Act came into force? 2. Whether the five-year limitation period specified in section 2(g) of the Act of 1997 applies to Subhra's tenancy, considering that Sunil died before the Act came into force?
Ratio Decidendi: 1. The Act of 1997 does not have retrospective effect and does not apply to the tenancy of Subhra, who inherited the tenancy from her father Sunil, who died before the Act came into force. 2. The five-year limitation period specified in section 2(g) of the Act of 1997 does not apply to Subhra's tenancy, as the Act does not have retrospective effect and the five-year limitation period is not applicable to tenancies that existed before the Act came into force.
Final Decision: The High Court set aside the impugned judgments of the lower court and directed the lower court to decide the injunction applications pending before it on merits, considering the observations made by the High Court.
Dipankar Datta, J.
1. These two revisional applications arise out of one set of facts and hence I propose to dispose of the same by this common order. One Sunil Mukherjee (hereafter Sunil) was inducted as a tenant by one Debabrata Chatterjee (hereafter Debabrata) in a part of premises No. 9B, Ramesh Mitra Road P.S. Bhowanipore, Kolkata-700 025 (hereafter the said premises). The tenancy comprised of one room on the ground floor and a room in the mezzanine floor, besides a bath cum privy (hereafter the suit property).
2. On the death of Debabrata, his widow Jyotsna Chatterjee (hereafter Jyotsna) and his son Subhas Chatterjee (hereafter Subhas) became joint owners of the said premises. Sunil continued as a tenant under Jyotsna and Subhas till his death on May 4, 1997. He died intestate leaving behind him his daughter Subhra Dey (nee Mukherjee) (hereafter Subhra) as his sole heir. After such death, Subhra continued as tenant in respect of the suit property.
3. Subhra passed away on March 20, 2011 leaving behind her Gautam Dey (hereafter Gautam), her husband, as her sole heir.
4. A month later i.e. on April 20, 2011, two suits were instituted. Title Suit No. 1144 of 2011 (hereafter the former suit) was instituted by Jyotsna and Subhas impleading Gautam as defendant for declaration and injunction. It was alleged therein that on the death of Sunil, his daughter Subhra became the monthly tenant under Jyotsna and Subhas subject to her right of remaining in possession of the suit property for a period not exceeding five years from May 4, 1997 i.e. the date of death of Sunil having regard to the provisions of section 2(g) of the West Bengal Premises Tenancy Act, 1997 (hereafter the Act of 1997). According to them, with effect from June 2002, Subhra became a trespasser in respect of the suit property and consequently Gautam has no right or authority to remain in possession thereof. To prevent Gautam from trespassing into the suit property. Jyotsna and Subhas prayed for the following relief:
a) a decree for declaration that the defendant is a trespasser in respect of the suit property and has got no right to enter into the suit property;
b) a decree for permanent injunction restraining the defendant and his men and agents from entering into the suit property in any manner whatsoever;
c) cost of the suit;
d) such other relief/reliefs to which the plaintiffs are entitled to in law and in equity.
5. Gautam instituted Title Suit No. 1155 of 2011 (hereafter the latter suit) impleading Jyotsna as the sole defendant. It was pleaded that Subhra had been inducted as a monthly tenant under Jyotsna in respect of the suit property at a rental of Rs. 300A per month payable according to English Calendar month; that Subhra had tendered rent through money order to Jyotsna who received it for the last time in September, 2010; that on refusal on the part of Jyotsna to receive rent for the month of October, 2010 and onwards, rent is being deposited in the office of the Controller regularly; that Subhra was suffering from cancer and other female diseases and she ultimately passed away on March 20, 2011; that on March 25, 2011 Gautam came to the suit property and found the same to have been locked by someone; that his attempt to enter into the suit property was resisted by Jyotsna and Subhas as a result whereof he visited Bhawanipore Police Station and lodged a diary, but without any effective result; that on 31st March, 2011, Gautam came to the suit property for performing the last rites of Subhra and made a request to Jyotsna and Subhas to remove the pad-lock put by them, which they are refused; that Gautam was threatened with dire consequences if he attempted to enter into the suit property in future; that the incident was again diarised pursuant whereto the police came over to the suit property and requested Jyotsna to remove the pad-lock but she refused to do the same; and that the police, in the circumstances, advised Gautam to obtain order from the appro
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