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IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
SOUMEN SEN, J.
ANIRUDH JALAN – Plaintiff
Versus
BRAHMAPUTRA VALLEY FERTILIZER CORPORATION LTD. – Defendant
GA No. 3021, 3175 of 2013, CS No.257 of 2013
Decided On : 15-07-2016
TRANSFER OF PROPERTY ACT - SECTION 106 - LEAVE AND LICENSE - TENANCY - EVICTION - SUMMARY PROCEDURE - PLAUSIBLE DEFENCE - WEST BENGAL PREMISES TENANCY ACT, 1997 - APPLICABILITY - EXEMPTION - NOTICE TO QUIT - VALIDITY - ADMISSION OF TENANCY IN AFFIDAVIT-IN-OPPOSITION - EFFECT.
Fact of the Case:
The plaintiff, the current owner of the property, purchased it from the erstwhile owner in 2012. The defendant was initially a monthly tenant under the erstwhile owner but refused to attorn tenancy in favor of the plaintiff. Eventually, a license agreement was entered into between the parties for the period from November 26, 2012, to April 30, 2013. The defendant, however, claimed to be a tenant under the erstwhile owner and a licensee under the plaintiff, entitling them to occupy the premises beyond the license period.
Finding of the Court:
The court held that the defendant's defense was not plausible and that the tenancy was exempt from the West Bengal Premises Tenancy Act, 1997, making the Transfer of Property Act applicable. The court also found that the defendant's admission of tenancy in the affidavit-in-opposition did not alter the fact that the relationship between the parties was governed by the Transfer of Property Act.
Issues: 1. Whether the defendant was a tenant or a licensee. 2. Whether the tenancy was exempt from the West Bengal Premises Tenancy Act, 1997. 3. Whether the notice to quit was valid.
Ratio Decidendi: 1. The court held that the defendant's defense that they were a tenant and not a licensee was not plausible. 2. The court relied on the Supreme Court's decision in Subrata Kumar Ray vs. Outram Club & Ors. to hold that even if the defendant was considered a tenant, the exemption from the tenancy act would apply. 3. The court found that the notice to quit was valid as it was served more than 15 days before the expiry of the license period.
Final Decision: The court allowed the plaintiff's application for summary eviction in part, directing the defendant to vacate the premises. The court left the other claims to be decided in a regular trial.
SOUMEN SEN, J.
1. The petitioner has filed this application under Chapter XIIIA of the Original Side Rules of this Court for eviction of the defendant from the suit premises.
2. The plaintiff is a present owner of the property.
3. Initially, the defendant was a monthly tenant under one Smt. Jayshree Bajoria (hereinafter referred to as the “erstwhile owner”). The plaintiff purchased the said premises from the said erstwhile owner by a registered Deed of Conveyance dated 15th May, 2012. Pursuant to such transfer, the erstwhile owner by a letter dated 16th May, 2012 informed the defendant about the said transfer and requested the defendant to attorn the tenancy of the defendant under her in favour of the plaintiff and pay the monthly rents to the plaintiff with immediate effect.
4. Initially, the defendant refused to attorn its tenancy in favour of the present plaintiff and did not even pay any rent in terms of the tenancy agreement with the erstwhile owner in favour of the plaintiff. Ultimately, on 26th November, 2012, the defendant agreed to enter into a licence agreement to use the said premises till 30th April, 2013. In response to the offer of the defendant, the plaintiff has granted the said licence in favour of the defendant on and from 26th November, 2012 till 30th April, 2013. As the defendant did not pay any occupation charges to the plaintiff for using the said premises on and from 15th May, 2012 till 26th November, 2012 when the said licence was granted, it was agreed between the plaintiff and the defendant that the defendant would make payment of licence fee with retrospective effect from 1st June, 2012. The defendant agreed to pay a consolidated sum of Rs.18,660/- towards licence fees and other charges which include maintenance charges, municipal taxes and commercial surcharges.
5. The plaintiff by a legal notice dated 23rd March, 2013 reminded the defendant that the licence granted under the said licence agreement dated 26th November, 2012 was due to expire on 30th April, 2013, and, accordingly, the defendant was called upon 3 to hand over the said premises on and from May 1, 2013 failing which the defendant would be treated as a trespasser and appropriate proceedings would be initiated against the defendant. In response to the aforesaid letter, the defendant by a letter dated 29th April, 2013 contended that though the defendant had entered into a licence agreement on 26th November, 2012, the defendant is also a tenant under the erstwhile owner and occupying the said premises under dual capacity as a tenant under the earlier owner as well as the licensee under the plaintiff and as such even after expiry of the licence, the defendant is entitled to occupy the premises as a tenant under the erstwhile owner. The defendant on the aforesaid plea has refused to vacate the premises on and from 1st May, 2013. Since the plaintiff was not willing to extend the licence dated 26th November, 2012 and as the defendant failed to make over possession of the said premises the plaintiff filed a suit for recovery of possession and mesne profit. After institution of the suit, the plaintiff has taken out this application for summary eviction of the defendant.
6. In the affidavit-in-opposition, the defendant alleged that the defendant is a lawful tenant of the suit premises under the subsisting tenancy agreement dated 22nd January, 2009. The agreement dated 26th November, 2012, relied upon and referred to by the plaintiff is vitiated by fraud as the plaintiff in collusion and conspiracy with one Ashit Kumar surreptitiously entered into an arrangement, against some extraneous consideration, in order to create the alleged agreement as leave and licence in respect of the suit premises for 11 months notwithstanding the subsistence of lawful and valid tenancy agreement between the defendant and the plaintiff. The alleged leave and licence agreement is a manufactured document. The plaintiff has filed a suit on 14th May, 2014 in the City C
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