West Bengal Premises Tenancy Act, 1997:
s. 2(g) second proviso – Decree of eviction against spouse of deceased tenant, on the ground of default in payment of rent – In respect of non-residential premises – Appeal by tenant taking the plea that spouse of the deceased was entitled to life-time protection from eviction – High Court dismissed the appeal – Appeal to Supreme Court – Held: In respect of non-residential premises, under second proviso to s. 2(g), a right of preference is granted to stipulated heirs of deceased-tenant – However, the Proviso does not grant such preferential right to the spouse of such tenant – The exclusion of spouse of the deceased-tenant is without rationale, discriminatory and deprives the surviving spouse of a valuable entitlement – This is a case of casus omissus – There is valid justification of amending the provision so as to bring the widow of the tenant within the ambit of second proviso – In the facts of the present case and in view of the fact that the appellant i.e. spouse of the deceased tenant has continued to occupy the premises for a period in excess of seventeen years after the death of the tenant, eviction order is upheld.
Disposing of the appeal, the Court
HELD: 1. The effect of the first proviso to s. 2(g) of West Bengal Premises Tenancy Act, 1997 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. 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. [Para 9] [1055-B-F]
2. 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 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 predeceased son in the matter of a fresh agreement of tenancy is also recognized to inhere in the spouse of a deceased-tenant. [Para 9] [1055-F-H; 1056-A-B]
3. The High Court was right in coming to the conclusion that a substantive amendment to the second proviso is required 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. [Para 9] [1056-B-D]
4. In the present case, the appellant has continued to occupy the premises for a period in excess of seventeen years after the death of the tenant. As stated before this Court the landlord does not intend to execute any fresh tenancy. Having due regard to the judgment of the Trial Court which has been affirmed by the High Court, there is no reason to entertain the appeal insofar as the decree for eviction is concerned. However, time is granted to the appellant to vacate the premises. [Para 10] [1056-E-F]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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