Nasima Naqi vs Todi Tea Company Ltd.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No. 9052 of 2019 (Arising out of SLP (C) No 1836 of 2019)

Nasima Naqi .... Appellant(s)

Versus

Todi Tea Company Ltd and Ors ....Respondent(s)

JUDGMENT

Dr Dhananjaya Y Chandrachud, J

Leave granted

This appeal arises from the judgment delivered by a Division Bench

of the High Court of Calcutta on 19 December 2018 rejecting the appeal filed

by the appellant against a decree for eviction under the West Bengal

Premises Tenancy Act 19971.

The spouse of the appellant was inducted as a tenant of shop Room

No 23 situated on the ground floor of the premises situated at 2 Lane Bazar

Street Calcutta-700001 on a monthly rent of Rs 235.95 under an agreement

dated 6 May 1988. An interest free deposit of Rs 12,000 was paid by the

original tenant at the time of being inducted into the premises. The tenant

Signature Not Verifieddied in July 2002 and was survived by the appellant and two sons. The Digitally signed by SANJAY KUMAR

landlord instituted a suit for eviction in 2010. The landlord alleged that after Date: 2019.12.10 16:16:01 IST Reason:

the coming into force of the amended provisions of the Act with effect from

1 “the Act’ 2

10 July 2001, the tenant was liable to pay enhanced rent in terms of the

proviso contained in Section 17(4B) which he had failed to pay. The landlord

claimed to have addressed a demand on 13 December 2002 which was not

complied with. The landlord claimed that, in any event, after the expiry of

five years from the date of death of the original tenant, his heirs had no right

to continue in possession of the premises. The landlord addressed a notice

to the heirs of the original tenant on 30 July 2010 and eventually filed a suit

for eviction on 4 August 2017. The Judge in the 7 th Bench of the City Civil

Court, Calcutta passed a decree for eviction on the ground of default in the

payment of rent. The learned trial Judge also directed the defendants to pay

arrears quantified at Rs 27,887.10. Aggrieved by the decree for eviction, an

appeal was instituted before the High Court. The High Court noted that the

principal ground of challenge was that a spouse of a deceased tenant is

entitled to life time protection from eviction in respect of premises let out for

non-residential purposes 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 is entitled to life-time protection from eviction in respect of 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 fresh agreement executed in such spouse's favour, on condition of payment of fair rent, in respect of the premises let out for non-residential purpose”

The premises were let out for non-residential purposes within the

meaning of Section 3(f) of the Act. The premises lie within the limits of the

Calcutta Municipal Corporation and the monthly rent was not more than Rs

10,000. The issue which arose for consideration was whether the

appellant could be regarded as a tenant or whether as a spouse of the 3

deceased tenant, the appellant was entitled to be included within the

extended meaning of the expression “tenant” in Section 2(g).

Section 2(g) provides as follows:

"2. Definitions. - (g) "tenant" means any person by whom or on whose account or behalf the rent of any premises is or, but for a special contract, would be payable, and includes any person continuing in possession after termination of his tenancy and, in the event of death of any tenant, also includes, for a period not exceeding five years from the date of death of such tenant or from the date of coming into force of this Act, whichever is later, his spouse, son, daughter, parent and the widow of his predeceased son, who were ordinarily living with the tenant up to the date of death of the tenant as the members of his family and were dependant on him and who do not own or occupy any residential premises, and in respect of premises let out for non- residential purpose his spouse, son, daughter and parent who were ordinarily living with the tenant up to the date of his death as members of his family, and were dependant on him or a person authorised by the tenant who is in possession of such premises but shall not include any person against whom any decree or order for eviction has been made by a Court of competent jurisdiction:

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

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

The High Court rejected the claim of the appellant to be entitled to a

special right as the spouse of the deceased – original tenant. This was

because, in the view of the High Court, the first proviso would not apply to

premises let out for non-residential purposes and, more importantly, the

spouse of an original tenant has not been conferred with any right under

the second proviso which applies to premises let out for non-residential

premises. Having said this, the High Court noticed that where the tenancy 4

is of residential premises, the spouse of an original tenant will continue to

enjoy the protection under the statute irrespective of the number of years

that may have elapsed after the death of the original tenant, so long as

such a spouse was ordinarily residing with the original tenant till the death

of the tenant, as a member of the family; was dependant on the original

tenant; and did not own or occupy any residential premises. On the other

hand, only the children, parents or the widow of a pre-deceased son of the

original tenant, were given limited rights in respect of non-residential

premises under the second proviso to Section 2(g), subject to their fulfilling

the same criteria. The High Court noted that the spouse of a deceased –

original tenant is, however, not accorded such a right under the second

proviso. This, it held to be “a colossal case of casus omissus”. The last

sentence of the second proviso to Section 2(g) specifies that it would apply

mutatis mutandis to premises let out for non-residential purposes. The

operation of the first proviso was held to be barred in respect of premises

let out for non-residential purposes. The High Court observed that the

case of a spouse may have been overlooked by the legislature in respect

of premises let out for non-residential purposes. But, it observed, such an

omission could not be “corrected by judicial engineering of a statutory

provision”. The correction of the mistake, if any, would have to be effected

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 to protection from eviction in respect of premises let out for non-residential purpose beyond the period of five years from the date of death of the original tenant if such original tenant died after the coming into force of the Act of 1997.

5

ii. The spouse of a deceased original tenant does not have any right to have a fresh agreement executed in such spouse's favour in respect of any premises let out for non-residential purpose if the decree-holder landlord wishes to let out the premises afresh upon obtaining the decree or possession of the premises pursuant to the decree.”

Finding no merit in the appeal, the High Court affirmed the judgment

of the Trial Court.

The issue which falls for determination in the present appeal turns

upon the interpretation of provisions of Section 2(g). The initial part of

Section 2(g) defines a tenant to mean any person by whom or on whose

account or behalf the rent of any premises is or, but for a special contract,

would be payable, and includes any person continuing in possession after

the termination of the tenancy. The latter part of the definition deals with

the devolution of the tenancy on the death of a tenant. It specifies that

when a tenant dies, the expression also includes, 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 son who fulfill the following conditions:

(i) The individual should have ordinarily been living with the tenant

up to the date of the death as a member of the family;

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

and

(iii) The individual should not own or occupy any residential

premises.

In other words, in relation to residential premises, the protection of a

tenant is extended for a period not exceeding five years from the date of 6

death to the spouse, son, daughter, parent and widow of the pre-deceased

son, subject to the fulfilment of the above conditions. Where the premises

have been let out for non-residential purposes, the protection also extends

to the spouse, son, daughter and parent who were:

(i) Ordinarily living with the tenant up to the date of death as

members of the family; and

(ii) Dependant on the tenant or a person authorised by the tenant

who is in possession of the premises.

The effect of the first proviso is that the time limit of five years is not to

apply to the spouse of the tenant who was ordinarily living with the tenant

up to his death as a member of the family and, besides being dependant

on him, does not own or occupy residential premises. Thus, in the case of

residential premises, the time limit of five years is not applicable to the

spouse of the deceased-tenant who fulfills the requirements which have

been specified. The limit of five years does not apply to a spouse where

the premises are residential. Under the second proviso, a right of

preference for tenancy is granted in a fresh agreement in respect of the

premises, subject to the condition of payment 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 ordinarily residing with the tenant in the

premises up to the date of death as a member of the family and was

dependant on the tenant and who does not own or occupy any residential

premises. However, the legislature, while enacting the second proviso,

has not included the spouse of a deceased-tenant in recognizing a right of

preference for tenancy in a fresh agreement in respect of the premises. 7

The last sentence of the second proviso states that it shall apply mutatis

mutandis to premises let out for non-residential purposes. Thus, both in

the case of residential as well as non-residential premises, a provision has

been made in the second proviso under which a right of preference is

granted to stipulated heirs of the deceased-tenant where a fresh

agreement is to be entered into in respect of the premises. The effect of

the second proviso is that the legislature has not recognized the

entitlement of the spouse while conferring a right of preference for tenancy

in a case of a fresh agreement. The High Court was correct in observing

that this is a case of casus omissus on the part of the legislature. This is

evidently an inadvertent omission. The exclusion of a spouse of a

deceased tenant is without rationale, discriminatory and deprives the

surviving spouse of a valuable entitlement granted to the other heirs.

There is a valid justification for amending the provision so as to bring the

widow within the ambit of the second proviso. This is a matter which, in

our view, deserves to be considered by the legislature. Having due regard

to the object and purpose underlying the recognition of a right of

preference under the second proviso and the social welfare purpose

underlying the enactment of the legislation, it would be appropriate if this

aspect is considered. The recognition of a right of preference by the

second proviso is intended as a measure of protection for the heirs of a

deceased tenant and it would but be appropriate and proper if the same

protection which is extended to a son, daughter, parent or widow of a pre-

deceased son in the matter of a fresh agreement of tenancy is also

recognized to inhere in the spouse of a deceased-tenant. The High Court 8

was right in coming to the conclusion that this would require a substantive

amendment to the second proviso since it is not open to the court to

introduce words in the second proviso which have the effect of including

one class of heirs, namely, a spouse of a deceased-tenant whom the

legislature has left out of the terms of the second proviso. Absent such a

protection, the spouse of a deceased tenant would be left without the

protection which is conferred upon the son, daughter, parent or widow of a

pre-deceased son. There would appear to be no justification for not

considering the grant of such a protection on the spouse of the original

tenant. We hope and trust that this aspect of the omission in the second

provisio will engage the attention of the law makers so as to fulfill the

salutary purpose of the provision.

Insofar as the present case is concerned, the appellant has continued

to occupy the premises for a period in excess of seventeen years after the

death of the tenant. Learned counsel for the landlord stated before this

Court that the landlord does not intend, in any case, to execute any fresh

tenancy. Having due regard to the judgment of the Trial Court which has

been affirmed by the High Court, we see no reason to entertain the appeal

insofar as the decree for eviction is concerned. However, we grant time to

the appellant to vacate the premises until 30 June 2020 subject to the filing

of the usual undertaking in the Registry of this Court within a period of four

weeks from today failing which the decree shall become executable

forthwith. A copy of this judgment shall be forwarded to the Chief

Secretary of the State of West Bengal.

9

The appeal is accordingly disposed of. There shall be no order as to

costs.

…………...…...….......………………........J. [Dr Dhananjaya Y Chandrachud]

…..…..…....…........……………….…........J. [Ajay Rastogi]

New Delhi;

November 26, 2019 10

ITEM NO.21 COURT NO.8 SECTION XVI

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C) No(s).1836/2019

(Arising out of impugned final judgment and order dated 19-12-2018 in FA No. 162/2018 passed by the High Court at Calcutta)

NASIMA NAQI Petitioner(s)

VERSUS

TODI TEA COMPANY LTD. & ORS. Respondent(s)

(WITH I.R. and IA No.9882/2019-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT)

Date : 26-11-2019 This petition was called on for hearing today.

CORAM : HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MR. JUSTICE AJAY RASTOGI

For Petitioner(s) Mr. S. K. Bhattacharya, AOR Mr. L.K. Paonam, Adv. Mr. Niraj Bobby Paonam, Adv. Mrs. Tomthinnganbi Koijam, Adv.

For Respondent(s) Mr. Ashok Kumar Jain, Adv. Mr. Amar Dave, Adv. Mr. Bijoy Kumar Jain, AOR

UPON hearing the counsel the Court made the following O R D E R

Leave granted.

The appeal is disposed of in terms of the signed

reportable judgment. There shall be no order as to

costs.

Pending application, if any, stands disposed of.

(SANJAY KUMAR-I) (SAROJ KUMARI GAUR) AR-CUM-PS COURT MASTER

(Signed reportable judgment order is placed on the file)