Pre. .

Whereas it is expedient to regulate in certain respects the relationship between landlord and tenant in respect of non-agricultural lands in the urban areas of the State of Assam ;It is hereby enacted in the Sixth Year of the Republic of India as follows ;

S.1 Short title, extent and commencement

(1) This Act may be called the Assam Non-Agricultural Urban Areas Tenancy Act, 1955.(2) It extends—(a) to the urban areas in the State of Assam ; and(b) to any other areas which have been or may hereafter be declar#31;ed town lands under Cl. (a) of R. 64 of the Settlement Rules made under the Assam Land and Revenue Regulation, 1886 (Regulation 1 of 1886) or the Assam Land Revenue Re-assess#31;ment Act, 1936 (Assam Act VIII of 193o).(3) It shall come into force on such date** as the State Government may, by notification in the official Gazette, appoint.

S.2 Application

Notwithstanding anything contained in any contract or in any law for the time being in force, the provisions of this Act, shall apply to all non-agricultural tenancies whether created before or after the date on which this Act comes into force :(i) Provided that the provisions of this Act shall not apply to—(a) Government land held under an ‘annual’ or ‘short lease1 as defined in the rules made under the Assam Land and Revenue Regulation, 1886 (Regulation 1 of 1886) ; or(b) land held by the Government of India or by local authority or by the State Government ; or(c) any holding which contains one or more buildings owned by the landlord and which has been let to any person ; or(d) land used for residence of the landlord or reserved for being used for such purpose in its vicinity and let out to persons or let out in lieu of service or merely in considera#31;tion

S.3 Definitions

In this Act, unless there is anything repugnant in the subject or context—(a) ‘holding’ means a parcel or parcels of land or an undivided share thereof held by a tenant, and forming the subject-matter of one and the same tenancy ;(b) ‘land’ means land which is let or occupied for residential pur#31;poses or for purposes incidental thereto, and includes sites for buildings, water, water-ways, drains, ditches, canals, tanks and wells appertaining to such land ;(c) ‘landlord’ means a person immediately under whom a tenant holds but does not include the Government;(d) ‘permanent structure’ means structure made of cement, concrete, stone, brick, iron, aluminium, asbestos or wood or any com#31;bination of these materials :Provided that a building with bamboo or ikra walls and thatched roof shall also be regarded as a permanent structure if its frame is con

S.4 Obligation to pay rent

A tenant shall pay rent for his holding at fair and equitable rates :Provided that in case of dispute the rate at which rent has been previously paid by a tenant immediately before the dispute shall be deemed to be fair and equitable unless the contrary be proved in a competent Civil Court.

S.5 Protection from eviction

(1) Notwithstanding anything in any contract or in any law for the time being in force -(a) where under the terms of a contract entered into between a landlord and his tenant whether before or after the commencement of this Act, a tenant is entitled to build, and has in pursuance of such terms actually built within the period of five years from the date of such contract, a permanent structure on the land of the tenancy for residential or business purposes, or where a tenant not being so entitled to build, has actually built any such structure on the land of the tenancy for any of the purposes aforesaid with the knowledge and acquiescence of the landlord, the tenant shall not be ejected by the land#31;lord from the tenancy except on the ground of non-payment of rent ; (b) where a tenant has effected improvements on the land of the tenancy under the terms whereof he is not entitled to effect such improvements,

Legal Commentary on Section 5 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955

Introduction

Section 5 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955, provides crucial protections to tenants in urban non-agricultural lands, particularly concerning eviction procedures and the conditions under which tenants can be lawfully evicted. It aims to balance the rights of tenants and landlords, ensuring tenants are protected from arbitrary eviction while allowing landlords to seek possession under specific circumstances.

What does Section 5 Say?

Section 5 primarily stipulates that no tenant shall be evicted by the landlord except through a decree passed by a competent civil court. It emphasizes that eviction cannot be effected without following due legal process, and it recognizes certain protections for tenants who have constructed permanent structures within five years of the tenancy or with the landlord’s knowledge and acquiescence.

Essential Ingredients

• Protection from Eviction: No eviction except through a court decree.
• Conditions for Protection:
• Construction of permanent structures within five years of the tenancy, either with the landlord’s permission or with his knowledge and acquiescence.
• The protection extends to persons who have acquired rights through various modes of possession, including rights derived from agreements or statutory provisions.
• Forfeiture of Protection: Protection can be forfeited if the tenant defaults in rent payment or if the structure was constructed without the landlord’s consent and outside the stipulated period.
• Legal Process: Eviction proceedings must be initiated and carried out through a civil court, ensuring adherence to procedural safeguards.

Scope of Section 5

• Protection to Tenants: It safeguards tenants who have made permanent constructions within five years of the start of tenancy, provided they do so with the landlord’s knowledge or permission.
• Non-Retroactivity: The provisions, especially the second proviso, have been interpreted to have prospective or limited retrospective effect, depending on legislative intent and judicial interpretation.
• Construction and Possession: The section covers tenants who have constructed permanent structures either with consent or with knowledge and acquiescence of the landlord.
• Exclusions: Tenants who have not constructed structures within the stipulated period or without landlord’s knowledge are not protected.
• Legal Proceedings: The section mandates that eviction can only be effected via a court decree, not by self-help or summary proceedings.

Punishment for Violations

• Illegal Eviction: Any eviction outside the procedure prescribed under the Act and without a court decree is illegal and punishable under law.
• Penalties: The Act and relevant laws prescribe penalties for illegal eviction, including contempt proceedings and compensation for wrongful dispossession.

Legal Comments

• Protection Scope - Section 5 offers protection to tenants who have constructed permanent structures within five years of the tenancy, with or without landlord’s permission, provided there is knowledge or acquiescence - [Bhabendra Nath Baruah VS Bina Devi].
• Retrospective Effect - The section's provisions, especially the second proviso, have been interpreted to have limited retrospective application, not applying to structures built before the commencement of the section unless explicitly permitted - [Ram Kumar Agarawalla VS Mukul Rani Chakraborty].
• Construction within Five Years - Tenants who construct structures within five years of the tenancy are protected, but this protection is subject to proof of construction and landlord’s knowledge - [Hari Shankar Sahu VS Giridharilal Sarma ].
• Forfeiture of Protection - Protection can be forfeited if the tenant defaults in rent or constructs without the landlord’s consent outside the stipulated period - [Hari Shankar Sahu VS Giridharilal Sarma ].
• Legal Process for Eviction - Eviction must be through a court decree; self-help eviction is illegal - [Bhabendra Nath Baruah VS Bina Devi].
• Protection Not Absolute - The protection is not absolute; tenants can be evicted on grounds such as non-payment of rent or breach of tenancy conditions - [Gopal Chandra Sarkar VS Santosh Verma].
• Construction and Knowledge - The protection extends to structures built with the landlord’s knowledge or acquiescence; structures built without such knowledge are not protected - [Kamakhya Prasad Barua VS Abhiram Medhi (deceased by L. R. s) and others].
• Legal Proceedings - Eviction proceedings must follow due process, and any illegal eviction can lead to penalties and compensation claims - [Rabindra Chandra Das VS Md. Saifuddin Ahmed].
• Protection and Sub-tenants - Sub-tenants are generally not necessary parties in eviction suits, and protection under Section 5 applies primarily to original tenants who meet the criteria - [On The Death of Sole Appellant Jatindra Mohan Das His Heirs Smti Renu Bala Das and Others VS Makhan Bala Das and Others].
• Legal Interpretation - Courts have held that the section does not apply retrospectively to structures built before the section’s enactment unless explicitly covered - [Surendra Narayan Sukual VS Hirendra Chandra Chakravorty].
• Protection and Construction Mode - The protection is available if the construction is made in accordance with the lease terms or with landlord’s knowledge; unauthorized constructions are not protected - [Sohanlal Agarwalla VS Krishto Mohan Choudhury].
• Legal Procedure for Notice - Proper notice under Section 11 is essential before initiating eviction proceedings; lack of notice invalidates eviction - [Ram Kumar Agarawalla VS Mukul Rani Chakraborty].
• Protection and Adverse Possession - The section does not extend protection to adverse possessors; only lawful tenants with valid rights are protected - [Rabindra Chandra Das VS Md. Saifuddin Ahmed].
• Legal Effect of Non-joinder - Non-joinder of necessary parties, such as sub-tenants or persons with interest, can affect the validity of eviction proceedings but does not automatically nullify protection if the primary tenant qualifies - [On The Death of Sole Appellant Jatindra Mohan Das His Heirs Smti Renu Bala Das and Others VS Makhan Bala Das and Others].
• Judicial Approach - Courts have emphasized that protection under Section 5 is to be interpreted strictly, and any ambiguity should favor eviction unless conditions are clearly met - [Rajani Kanta Paul & Sons VS Musstt. Nasima Khatoon].

Conclusion

Section 5 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955, plays a pivotal role in safeguarding tenants who have made permanent constructions within the prescribed period, with the landlord’s knowledge or permission. Its scope is limited by specific conditions, and protections are subject to procedural compliance and judicial scrutiny. The section balances tenant rights with the landlord’s interest, emphasizing due process and legal remedies for eviction.

Note: All references are based on the provided sources and judicial interpretations therein.

S.6 Compensation for improvement

In a suit for ejectment against a tenant if any question arises—(a) whether the tenant has effected any improvement on the land of the tenancy, or(b) whether such improvement is reasonable improvement, or(c) whether any compensation made be paid for such an improve#31;ment, and if so, how much,the question shall be decided by the Court having regard to the circum#31;stances of each case.Explanation. Any structure which a tenant is under the terms of a contract referred to in Cl. (a) of sub-S. (5) entitled to build but has actually built after the expiry of the period of five years referred to in that clause shall be deemed to be a reasonable improvement within the meaning of this section.

S.7 Enhancement of rent by contract

The rent of a tenant may be enhanced only by contract subject to the following conditions :(a) the contract must be in writring and registered,(b) the rent must not be enhanced so as to exceed by more than nineteen paise in the rupee of the rent previously payable by the tenant, and(c) the rent fixed by the contract shall not be liable to enhancement during a term of six years from the date of contract :Provided as follows :(i) Nothing in Cl. (a) shall prevent a landlord from recovering rent at a rate at which it has been actually paid for a continuous period for which the rent is claimed ;(ii) Nothing in Cl. (b) shall apply to contract by which a tenant binds himself to pay an enhanced rent in consideration of an improvement which has been or is to be effected in respect of the holding by or at the expense of his landlord and to the benefi

S.8 Enhancement of rent without contract

(n the absence of a con#31;tract mentioned in S. 7, the tenant shall be liable to pay reasonable increment of rent for necessary improvement done by the landlord.

S.9 Enhancement of rent by application to Court

(1) A landlord or a tenant may make an application to the competent Civil Court having juris#31;diction to entertain a suit for ejectment in respect of the holding, for fix#31;ing a fair and equitable rate of rent for the holding, and thereupon the Court shall issue notice of such application upon the tenant or the land#31;lord, as the case may be, and after considering such evidence as the parties may produce before it, pass an order fixing the amount of rent payable for the holding, and such order shall, subject to appeal, be binding on both the landlord and the tenant with effect from the date of filing the aforesaid application :(a) that the rent previously payable for the holding shall not be enhanced by more than nineteen paise in the rupee, but if at any time the land revenue due to Government or the ground rent due to a proprietor is increased, then the tenant shall be liable to pay in addit

S.10 Illegal realisation

Realisation of any ‘salami* from the tenant at the time of initiating a lease shall not exceed an amount equivalent to one year’s rent for the land.

S.11 Notice of ejectment suit

No suit for ejectment except for arrears of rent shall be instituted until after the expiration of one month from the date of the receipt by the tenant of a notice in writing by the landlord requiring the tenant to surrender possession of the land in favour of the landlord.

S.12 Notice how to be served

All notices required to be served under this Act shall be served in the manner prescribed by rules.

S.13 Power to make rules

The State Government may, from time to time by notification in the official Gazette, make rules consistent with the provisions of this Act for carrying out the purpose of the same.

S.14 Repeal

The Sylhet Non-Agricultural Urban Areas Tenancy Act, 1947 (Assam X of 1947), is hereby repealed.