NASIMA NAQI versus TODI TEA COMPANY LTD. AND ORS on 26 November 2019

1048

[2019] 17 S.C.R. 1048

SUPREME COURT REPORTS

[2019] 17 S.C.R.

NASIMA NAQI

A

v.

TODI TEA COMPANY LTD. AND ORS

(Civil Appeal No. 9052 of 2019)

BNOVEMBER 26, 2019

[DR. DHANANJAYA Y. CHANDRACHUD ANDAJAY RASTOGI, JJ.]

West Bengal Premises Tenancy Act, 1997:

s. 2(g) second proviso – Decree of eviction against spouseCof deceased tenant, on the ground of default in payment of rent –In respect of non-residential premises – Appeal by tenant takingthe plea that spouse of the deceased was entitled to life-timeprotection from eviction – High Court dismissed the appeal –Appeal to Supreme Court – Held: In respect of non-residentialpremises, under second proviso to s. 2(g), a right of preference isDgranted to stipulated heirs of deceased-tenant – However, theProviso does not grant such preferential right to the spouse of suchtenant – The exclusion of spouse of the deceased-tenant is withoutrationale, discriminatory and deprives the surviving spouse of avaluable entitlement – This is a case of casus omissus – There isEvalid justification of amending the provision so as to bring thewidow of the tenant within the ambit of second proviso – In thefacts of the present case and in view of the fact that the appellanti.e. spouse of the deceased tenant has continued to occupy thepremises for a period in excess of seventeen years after the deathof the tenant, eviction order is upheld.F

Disposing of the appeal, the Court

HELD: 1. The effect of the first proviso to s. 2(g) of WestBengal Premises Tenancy Act, 1997 is that the time limit of fiveyears is not to apply to the spouse of the tenant who wasordinarily living with the tenant up to his death as a member ofGthe family and, besides being dependant on him, does not ownor occupy residential premises. Thus, in the case of residentialpremises, the time limit of five years is not applicable to thespouse of the deceased-tenant who fulfills the requirementswhich have been specified. The limit of five years does not applyHto a spouse where the premises are residential. Under the second proviso, a right of preference for tenancy is granted in afresh agreement in respect of the premises, subject to thecondition of payment of fair rent. The right is granted in favourof a son, daughter, parent or widow of a pre-deceased son of thetenant who was ordinarily residing with the tenant in thepremises up to the date of death as a member of the family andwas dependant on the tenant and who does not own or occupyany residential premises. However, the legislature, whileenacting the second proviso, has not included the spouse of adeceased-tenant in recognizing a right of preference for tenancyin a fresh agreement in respect of the premises. The lastsentence of the second proviso states that it shall apply mutatismutandis to premises let out for non-residential purposes. Thus,both in the case of residential as well as non-residentialpremises, a provision has been made in the second provisounder which a right of preference is granted to stipulated heirsof the deceased-tenant where a fresh agreement is to be enteredinto in respect of the premises. The effect of the second provisois that the legislature has not recognized the entitlement of thespouse while conferring a right of preference for tenancy in acase of a fresh agreement. The High Court was correct inobserving that this is a case of casus omissus on the part of thelegislature. [Para 9] [1055-B-F]

2. This is evidently an inadvertent omission. The exclusionof a spouse of a deceased tenant is without rationale,discriminatory and deprives the surviving spouse of a valuableentitlement granted to the other heirs. There is a validjustification for amending the provision so as to bring the widowwithin the ambit of the second proviso. This is a matter whichdeserves to be considered by the legislature. Having due regardto the object and purpose underlying the recognition of a rightof preference under the second proviso and the social welfarepurpose underlying the enactment of the legislation, it would beappropriate if this aspect is considered. The recognition of aright of preference by the second proviso is intended as ameasure of protection for the heirs of a deceased tenant and itwould but be appropriate and proper if the same protection whichis extended to a son, daughter, parent or widow of a predeceasedson in the matter of a fresh agreement of tenancy is also AB

C

DE

F

G

H

Arecognized to inhere in the spouse of a deceased-tenant. [Para9] [1055-F-H; 1056-A-B]

3. The High Court was right in coming to the conclusionthat a substantive amendment to the second proviso is requiredsince it is not open to the court to introduce words in the secondBproviso which have the effect of including one class of heirs,namely, a spouse of a deceased-tenant whom the legislature hasleft out of the terms of the second proviso. Absent such aprotection, the spouse of a deceased tenant would be left withoutthe protection which is conferred upon the son, daughter, parentor widow of a pre-deceased son. There would appear to be noCjustification for not considering the grant of such a protectionon the spouse of the original tenant. [Para 9] [1056-B-D]

4. In the present case, the appellant has continued tooccupy the premises for a period in excess of seventeen yearsafter the death of the tenant. As stated before this Court theDlandlord does not intend to execute any fresh tenancy. Havingdue regard to the judgment of the Trial Court which has beenaffirmed by the High Court, there is no reason to entertain theappeal insofar as the decree for eviction is concerned. However,time is granted to the appellant to vacate the premises. [ParaE10] [1056-E-F]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9052of 2019.

From the Judgment and Order dated 19.12.2018 of the HighCourt at Calcutta in F.A. No. 162 of 2018.FS.K. Bhattacharya, L.K. Paonam, Niraj Bobby Paonam,Mrs. Tomthinnganbi Koijam, Advs. for the Appellant.

Ashok Kumar Jain, Amar Dave, Bijoy Kumar Jain, Advs. for theRespondents.

GThe Judgment of the Court was delivered by DR. DHANANJAYA Y. CHANDRACHUD, J

1. Leave granted

2. This appeal arises from the judgment delivered by a DivisionHBench of the High Court of Calcutta on 19 December 2018 rejecting the appeal filed by the appellant against a decree for eviction underthe West Bengal Premises Tenancy Act 1997[1].

3. The spouse of the appellant was inducted as a tenant of shopRoom No 23 situated on the ground floor of the premises situated at 2Lane Bazar Street Calcutta-700001 on a monthly rent of Rs 235.95under an agreement dated 6 May 1988. An interest free deposit of Rs12,000 was paid by the original tenant at the time of being inductedinto the premises. The tenant died in July 2002 and was survived bythe appellant and two sons. The landlord instituted a suit for eviction in2010. The landlord alleged that after the coming into force of theamended provisions of the Act with effect from 10 July 2001, the tenantwas liable to pay enhanced rent in terms of the proviso contained inSection 17(4B) which he had failed to pay. The landlord claimed to haveaddressed a demand on 13 December 2002 which was not compliedwith. The landlord claimed that, in any event, after the expiry of fiveyears from the date of death of the original tenant, his heirs had noright to continue in possession of the premises. The landlord addresseda notice to the heirs of the original tenant on 30 July 2010 and eventuallyfiled a suit for eviction on 4 August 2017. The Judge in the 7[th] Benchof the City Civil Court, Calcutta passed a decree for eviction on theground of default in the payment of rent. The learned trial Judge alsodirected the defendants to pay arrears quantified at Rs 27,887.10.Aggrieved by the decree for eviction, an appeal was instituted beforethe High Court. The High Court noted that the principal ground ofchallenge was that a spouse of a deceased tenant is entitled to life timeprotection from eviction in respect of premises let out for non-residentialpurposes under Section 2(g) of the Act.

The High Court framed the following two points for determination:

“i. Whether the spouse of a deceased original tenant isentitled to life-time protection from eviction in respectof premises let out for non-residential purpose; and

ii. If the answer to the first legal issue is against the spouse,whether such spouse has a right to have a freshagreement executed in such spouse’s favour, on conditionof payment of fair rent, in respect of the premises letout for non-residential purpose”

A

B

C

D

E

F

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A4. The premises were let out for non-residential purposes withinthe meaning of Section 3(f) of the Act. The premises lie within the limitsof the Calcutta Municipal Corporation and the monthly rent was notmore than Rs 10,000. The issue which arose for consideration waswhether the appellant could be regarded as a tenant or whether as aspouse of the deceased tenant, the appellant was entitled to be includedBwithin the extended meaning of the expression “tenant” in Section 2(g).

A

Section 2(g) provides as follows:

A

Section 2(g) provides as follows:

“2. Definitions. - (g) “tenant” means any person by whom or onwhose account or behalf the rent of any premises is or, but fora special contract, would be payable, and includes any personcontinuing in possession after termination of his tenancy and, inthe event of death of any tenant, also includes, for a period notexceeding five years from the date of death of such tenant orfrom the date of coming into force of this Act, whichever is later,his spouse, son, daughter, parent and the widow of hispredeceased son, who were ordinarily living with the tenant upto the date of death of the tenant as the members of his familyand were dependant on him and who do not own or occupy anyresidential premises, and in respect of premises let out for non-residential purpose his spouse, son, daughter and parent who wereordinarily living with the tenant up to the date of his death asmembers of his family, and were dependant on him or a personauthorised by the tenant who is in possession of such premisesbut shall not include any person against whom any decree or orderfor eviction has been made by a Court of competent jurisdiction:

C

D

E

Provided that the time-limit of five years shall not apply to theFspouse of the tenant who was ordinarily living with the tenantup to his death as a member of his family and was dependanton him and who does not own or occupy any residential premises:

Provided further that the son, daughter, parent or the widow ofthe predeceased son of the tenant who was ordinarily residingGwith the tenant in the said premises up to the date of death ofthe tenant as a member of his family and was dependant on himand who does not own or occupy any residential premises, shallhave a right of preference for tenancy in a fresh agreement inrespect of such premises on condition of payment of fair rent.This proviso shall apply mutatis mutandis to premises let out forHnon- residential purpose.”

H

5. The High Court rejected the claim of the appellant to be entitledto a special right as the spouse of the deceased – original tenant. Thiswas because, in the view of the High Court, the first proviso wouldnot apply to premises let out for non-residential purposes and, moreimportantly, the spouse of an original tenant has not been conferred withany right under the second proviso which applies to premises let outfor non-residential premises. Having said this, the High Court noticedthat where the tenancy is of residential premises, the spouse of anoriginal tenant will continue to enjoy the protection under the statuteirrespective of the number of years that may have elapsed after thedeath of the original tenant, so long as such a spouse was ordinarilyresiding with the original tenant till the death of the tenant, as a memberof the family; was dependant on the original tenant; and did not ownor occupy any residential premises. On the other hand, only the children,parents or the widow of a pre-deceased son of the original tenant, weregiven limited rights in respect of non-residential premises under thesecond proviso to Section 2(g), subject to their fulfilling the same criteria.The High Court noted that the spouse of a deceased – original tenantis, however, not accorded such a right under the second proviso. This,it held to be “a colossal case of casus omissus”. The last sentence ofthe second proviso to Section 2(g) specifies that it would apply mutatismutandis to premises let out for non-residential purposes. The operationof the first proviso was held to be barred in respect of premises let outfor non-residential purposes. The High Court observed that the caseof a spouse may have been overlooked by the legislature in respect ofpremises let out for non-residential purposes. But, it observed, such anomission could not be “corrected by judicial engineering of a statutoryprovision”. The correction of the mistake, if any, would have to beeffected by the legislature by an amendment.

On the above reasoning, the High Court answered the points,which it had framed, in the following terms:

“i. The spouse of a deceased tenant is not entitled toprotection from eviction in respect of premises let outfor non-residential purpose beyond the period of fiveyears from the date of death of the original tenant ifsuch original tenant died after the coming into force ofthe Act of 1997.

A

B

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D

E

F

G

H

Aii. The spouse of a deceased original tenant does not haveany right to have a fresh agreement executed in suchspouse’s favour in respect of any premises let out fornon-residential purpose if the decree-holder landlordwishes to let out the premises afresh upon obtaining thedecree or possession of the premises pursuant to theBdecree.”6. Finding no merit in the appeal, the High Court affirmed thejudgment of the Trial Court.

7. The issue which falls for determination in the present appealCturns upon the interpretation of provisions of Section 2(g). The initialpart of Section 2(g) defines a tenant to mean any person by whom oron whose account or behalf the rent of any premises is or, but for aspecial contract, would be payable, and includes any person continuingin possession after the termination of the tenancy. The latter part ofthe definition deals with the devolution of the tenancy on the death ofDa tenant. It specifies that when a tenant dies, the expression alsoincludes, for a period not exceeding five years from the date of death(or from the date of coming into force of the Act, whichever is later),the spouse, son, daughter, parent and the widow of a pre-deceased sonwho fulfill the following conditions:

E(i) The individual should have ordinarily been living with thetenant up to the date of the death as a member of thefamily;

(ii) The individual should have been dependant on the tenant;and F

(iii) The individual should not own or occupy any residentialpremises.

8. In other words, in relation to residential premises, the protectionof a tenant is extended for a period not exceeding five years from thedate of death to the spouse, son, daughter, parent and widow of theGpre-deceased son, subject to the fulfilment of the above conditions.Where the premises have been let out for non-residential purposes, theprotection also extends to the spouse, son, daughter and parent whowere:

(i) Ordinarily living with the tenant up to the date of deathHas members of the family; and NASIMA NAQI v. TODI TEA COMPANY LTD. AND ORS[DR. DHANANJAYA Y. CHANDRACHUD, J]

(ii) Dependant on the tenant or a person authorised by thetenant who is in possession of the premises.

9. The effect of the first proviso is that the time limit of five yearsis not to apply to the spouse of the tenant who was ordinarily livingwith the tenant up to his death as a member of the family and, besidesbeing dependant on him, does not own or occupy residential premises.Thus, in the case of residential premises, the time limit of five years isnot applicable to the spouse of the deceased-tenant who fulfills therequirements which have been specified. The limit of five years doesnot apply to a spouse where the premises are residential. Under thesecond proviso, a right of preference for tenancy is granted in a freshagreement in respect of the premises, subject to the condition ofpayment of fair rent. The right is granted in favour of a son, daughter,parent or widow of a pre-deceased son of the tenant who was ordinarilyresiding with the tenant in the premises up to the date of death as amember of the family and was dependant on the tenant and who doesnot own or occupy any residential premises. However, the legislature,while enacting the second proviso, has not included the spouse of adeceased-tenant in recognizing a right of preference for tenancy in afresh agreement in respect of the premises. The last sentence of thesecond proviso states that it shall apply mutatis mutandis to premiseslet out for non-residential purposes. Thus, both in the case of residentialas well as non-residential premises, a provision has been made in thesecond proviso under which a right of preference is granted to stipulatedheirs of the deceased-tenant where a fresh agreement is to be enteredinto in respect of the premises. The effect of the second proviso is thatthe legislature has not recognized the entitlement of the spouse whileconferring a right of preference for tenancy in a case of a freshagreement. The High Court was correct in observing that this is a caseof casus omissus on the part of the legislature. This is evidently aninadvertent omission. The exclusion of a spouse of a deceased tenantis without rationale, discriminatory and deprives the surviving spouseof a valuable entitlement granted to the other heirs. There is a validjustification for amending the provision so as to bring the widow withinthe ambit of the second proviso. This is a matter which, in our view,deserves to be considered by the legislature. Having due regard to theobject and purpose underlying the recognition of a right of preferenceunder the second proviso and the social welfare purpose underlying theenactment of the legislation, it would be appropriate if this aspect is AB

C

D

E

F

G

H

AB

C

D

E

F

G

H

Aconsidered. The recognition of a right of preference by the secondproviso is intended as a measure of protection for the heirs of adeceased tenant and it would but be appropriate and proper if the sameprotection which is extended to a son, daughter, parent or widow of apre- deceased son in the matter of a fresh agreement of tenancy isalso recognized to inhere in the spouse of a deceased-tenant. The HighBCourt was right in coming to the conclusion that this would require asubstantive amendment to the second proviso since it is not open tothe court to introduce words in the second proviso which have the effectof including one class of heirs, namely, a spouse of a deceased-tenantwhom the legislature has left out of the terms of the second proviso.CAbsent such a protection, the spouse of a deceased tenant would beleft without the protection which is conferred upon the son, daughter,parent or widow of a pre-deceased son. There would appear to be nojustification for not considering the grant of such a protection on thespouse of the original tenant. We hope and trust that this aspect of theomission in the second provisio will engage the attention of the lawDmakers so as to fulfill the salutary purpose of the provision.

10. Insofar as the present case is concerned, the appellant hascontinued to occupy the premises for a period in excess of seventeenyears after the death of the tenant. Learned counsel for the landlordstated before this Court that the landlord does not intend, in any case,Eto execute any fresh tenancy. Having due regard to the judgment ofthe Trial Court which has been affirmed by the High Court, we see noreason to entertain the appeal insofar as the decree for eviction isconcerned. However, we grant time to the appellant to vacate thepremises until 30 June 2020 subject to the filing of the usual undertakingFin the Registry of this Court within a period of four weeks from todayfailing which the decree shall become executable forthwith. A copy ofthis judgment shall be forwarded to the Chief Secretary of the Stateof West Bengal.

11. The appeal is accordingly disposed of. There shall be no orderGas to costs.

Kalpana K. Tripathy

Appeal disposed of.

H