Eviction of tenants

First, which law applies

The West Bengal Premises Tenancy Act, 1997 does not govern every letting in the State. It applies to premises within the areas to which it extends and is subject to the exclusions the Act itself provides. Where it does not apply — and this includes tenancies outside those areas, and categories the Act excludes — the tenancy is governed by the Transfer of Property Act, 1882, under which a tenancy is determined by notice under section 106 and possession is recovered by an ordinary suit.

The difference is substantial. Under the 1997 Act a landlord must bring himself within a statutory ground. Under the Transfer of Property Act he need only determine the tenancy lawfully. Establishing which regime governs the premises is therefore the first step, not a detail, and it turns on the location of the premises and the character of the letting.

The grounds under section 6

Section 6(1) provides that no decree for recovery of possession shall be made in favour of a landlord against a tenant except on a suit instituted on one or more of the grounds it sets out. Those grounds include:

• that the tenant has sublet, assigned or otherwise parted with possession of the whole or any part of the premises without the written consent of the landlord, or has used the premises for a purpose other than that for which they were let without his written consent
• that the tenant has made default in payment of rent for three months within a period of twelve months
• that the premises are reasonably required by the landlord for his own occupation, or for the occupation of a person for whose benefit the premises are held
• that the premises are reasonably required for building or rebuilding, or for making substantial additions or alterations, which cannot be carried out without the tenant vacating
• that the tenant has caused or permitted damage to the premises, or has been guilty of conduct amounting to a nuisance or annoyance to occupiers of adjoining premises

[VERIFY: reproduce the complete clause-by-clause enumeration of section 6(1) with the correct clause letters from the bare Act as amended, and confirm the wording of each ground before publishing. The list above is a summary in substance and must not be published as if it were exhaustive.]

Two qualifications on the ground of requirement are worth stating. The onus of establishing requirement is on the landlord, and where he has other suitable accommodation available to him the claim is liable to fail. And where a landlord has acquired his interest in the premises by transfer, section 6(2) bars a suit on the ground of requirement for building or rebuilding, or for his own occupation, until one year has expired from the date he acquired that interest — which forecloses the purchase of a tenanted building followed immediately by an eviction suit.

Why the forum changed, and why it matters

Under the Act as originally enacted, an application for eviction was made to the Rent Controller. By the amending Acts of 2005 and 2006 that jurisdiction was transferred, and the words “the Controller” were replaced by “the Civil Judge” throughout the relevant provisions. A landlord now institutes a suit.

The Controller has not disappeared. Functions remain with that office, including the receipt of rent deposited by a tenant under section 21 where the landlord refuses to accept it. But a proceeding for eviction commenced before the Controller is commenced in the wrong forum, and the time lost is time in which arrears continue and the tenancy continues.

The tenant’s right to deposit

Section 7 gives a tenant a defined opportunity to defeat a claim founded on default. On a suit being instituted on any of the grounds in section 6, the tenant is to pay to the landlord, or deposit with the Civil Judge, all arrears calculated at the rate at which rent was last paid, together with interest, within one month of service of summons or within such time as the section allows where he appears in the suit. If he does so, no order for delivery of possession on the ground of default in payment of rent is to be made against him, though the court may award costs to the landlord.

The relief is not unlimited. The proviso withdraws it from a tenant who, having obtained it once in respect of the same premises, again makes default for four months within a period of twelve months, or for three successive rental periods where rent is not payable monthly. A tenant who fails to make the deposit the section requires may have his defence against delivery of possession struck out, and the suit then proceeds on the landlord’s case.

A caution about the manufactured default

A landlord who wishes to create a ground sometimes stops accepting rent. The Act anticipates this. Section 21 provides a procedure by which a tenant whose rent has been refused may tender it, send it by postal money order, and, if it is still not accepted, deposit it with the Rent Controller. A tenant who follows that procedure and keeps the receipts is not in default. A tenant who simply stops paying because the landlord has stopped collecting is.

What a landlord should have before instituting

The tenancy itself has to be proved before any ground can be. The instrument or the arrangement creating the tenancy, the rate of rent and how it was last paid, the rent receipts issued, the notice given and proof of its service, and the municipal position on the premises are the papers on which the suit will turn. Where the ground is requirement, the landlord’s own accommodation is in issue and will be examined.

Frequently asked questions