Re-examining the Definition of “Tenant” under Section 2(g) of the West Bengal Premises Tenancy Act, 1997

Re-examining the Definition of “Tenant” under Section 2(g) of the West Bengal Premises Tenancy Act, 1997: Scope, Limits and Judicial Interpretation

1. Introduction

The West Bengal Premises Tenancy Act, 1997 (“1997 Act”) was enacted to replace the earlier West Bengal Premises Tenancy Act, 1956 (“1956 Act”) and to rationalise rent control in the State of West Bengal. Among its most consequential provisions is the re-definition of “tenant” in Section 2(g). The definition not only identifies the class of persons entitled to statutory protection but also circumscribes the temporal extent of such protection, particularly in cases of inheritance. This article critically analyses Section 2(g) through textual exegesis, legislative history and judicial gloss, with a view to clarifying doctrinal ambiguities and procedural ramifications.

2. Legislative Evolution and Policy Objectives

The 1956 Act was part of a nation-wide legislative response to a chronic scarcity of urban housing and the perceived imbalance between landlords and tenants.[1] It severely curtailed eviction and rent-enhancement, thereby “shackling” the plenary rights of landlords.[2] By the mid-1990s, however, concerns about over-protection, stagnating rentals and non-availability of new housing prompted legislative reform. The 1997 Act sought to calibrate protection by—

  • placing an upper monetary cap on rent to exclude affluent tenants (Section 3);
  • introducing an automatic 5% triennial rent revision (Section 18);[3]
  • redefining “tenant” to limit post-death succession (Section 2(g)).

3. Textual Analysis of Section 2(g)

3.1 Statutory Text

“‘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 ... his spouse, son, daughter, parent and the widow of his pre-deceased son... who do not own or occupy any residential premises ... but shall not include any person against whom any decree or order for eviction has been made.” (emphasis supplied)

3.2 Constituent Elements

  1. Primary Tenant – the person contractually liable to pay rent.
  2. Statutory Tenant – a person continuing after termination yet before eviction.[4]
  3. Heirs – enumerated relatives who (a) ordinarily resided with, and (b) were dependent on, the deceased tenant, but only for five years.
  4. Negative Carve-out – any person already subject to an eviction decree is excluded ab initio.

The five-year ceiling is sui generis; unlike other rent control statutes (e.g., Delhi, Maharashtra) that confer heritable tenancy without a temporal limit, West Bengal adopts a hybrid model—statutory tenancy survives but only transiently. The intent is to balance security of occupancy with the landlord’s reversionary interest.

4. Comparative Perspective: 1956 Act v. 1997 Act

Under Section 2(h) of the 1956 Act, tenancy devolved on all “heirs” without any temporal restriction, a feature repeatedly criticised for fostering perpetual statutory tenancies.[5] Section 2(g) of the 1997 Act narrows this by—

  • specifying categories of heirs (excluding, for example, married daughters-in-law, grandchildren);
  • imposing a five-year limit; and
  • requiring proof of co-residence and dependency.

Thus, succession is no longer automatic nor indefinite; it is conditional and time-bound.

5. Judicial Construction of Section 2(g)

5.1 Early High Court Decisions (2004-2010)

The Calcutta High Court soon grappled with suits framed against heirs as “trespassers” after expiry of five years. In Prasun Chakraborty v. Indira Jaiswal, the trial court’s decree treating sons as trespassers was affirmed because they did not fall within the specified heirs beyond the five-year window.[6]

5.2 Procedural Ramifications

Swapan Mondal v. Shipra Ghosh clarified that a suit framed under Section 2(g) (eviction of trespasser) is not a suit under Section 6 (statutory grounds of eviction). Consequently, the tenant-defendant cannot invoke Section 7(1) or 7(2) for deposit of rent.[7] The decision underscores the bifurcation of procedural regimes within the same statute.

5.3 Substitution of Parties After Death

The five-year cap affects Order XXII CPC applications. In Durga Rani Ghosh v. Bhavesh Verma, the court allowed deletion of a deceased defendant because her heirs were statutorily excluded under Section 2(g).[8] Similarly, Amitava Dutta v. Upendra Baitha held that post-limit heirs have no right to be impleaded.[9]

5.4 Evidentiary Onus

In Usha Barua v. Amarendra Chakraborty the court observed that an heir must affirmatively prove co-residence and dependency to claim the five-year protection; mere lineage is insufficient.[10]

5.5 Interface with High-Value Tenancies

The Supreme Court in EIH Ltd. v. Nadia A. Virji held that the 1997 Act applies prospectively to tenancies existing before its commencement unless expressly saved; yet tenancies exceeding the Section 3 rent cap fall outside its ambit altogether.[11] Where Section 2(g) is inapplicable, heirs may derive no statutory protection irrespective of duration.

6. Interaction with General Property Law

The landlord-tenant relationship, absent statutory protection, is governed by the Transfer of Property Act, 1882 (“TPA”). Upon the lapse of Section 2(g) protection, the occupier’s status reverts to that of a tenant-at-sufferance, enabling eviction upon service of a Section 106 TPA notice.[12] Cases such as Shivani Properties Pvt. Ltd. v. Rama Shankar Pandey illustrate that landlords need only prove jural relationship and valid termination; Section 2(g) fortifies their claim by statutorily extinguishing the heirs’ tenancy.[13]

7. Doctrinal Critique

7.1 Constitutional Concerns

The five-year limitation has not been directly assailed under Article 14 or 19(1)(g). However, by creating a cut-off based on time rather than need, the provision arguably introduces an element of arbitrariness. Comparable statutes in Delhi and Maharashtra confer succession so long as heirs continue to satisfy residence-cum-dependency tests. Whether the West Bengal model unjustifiably impairs the right to shelter merits further academic scrutiny.

7.2 Practical Difficulties

  • Proof of Dependency – Courts have adopted a strict evidentiary standard, often disadvantaging women and elderly dependants lacking formal documentation.
  • Fragmented Proceedings – Parallel suits under Section 2(g) (trespass) and Section 6 (statutory grounds) lead to procedural complexity, as highlighted by Swapan Mondal.
  • Urban Development – By providing a definite exit for landlord’s reversion, Section 2(g) may incentivise maintenance and redevelopment, aligning with policy goals.

8. Recommendations

  1. Introduce rule-making under Section 45 empowering the State to prescribe documentary indicators of dependency to reduce litigation.
  2. Consider legislative amendment extending the five-year cap for vulnerable categories (senior citizens, disabled persons).
  3. Streamline procedural bifurcation by expressly allowing Section 7 applications in suits where tenancy status is sub judice.

9. Conclusion

Section 2(g) of the West Bengal Premises Tenancy Act, 1997 represents a conscious legislative attempt to balance tenant protection with landlord’s proprietary rights by limiting post-death succession. Judicial interpretation has largely upheld the legislative intent, emphasising strict compliance with the statutory conditions and time-limit. While the provision has reduced the phenomenon of perpetual statutory tenancies, its rigid framework raises questions of equity and administrability. Future reform should aim to preserve the equilibrium between social welfare and economic efficiency without sacrificing doctrinal clarity.

Footnotes

  1. B. Banerjee v. Anita Pan, (1974) 1 SCC 637 (policy rationale behind rent control laws).
  2. Ibid.
  3. EIH Ltd. v. Nadia A. Virji, (2022) 5 SCC 329.
  4. See Section 2(g) proviso, 1997 Act.
  5. Smt. Juthika Muliek v. Dr. Mahendra Yashwant Bal, (1995) 4 SCC 53 (interpreting 1956 Act succession).
  6. Prasun Chakraborty v. Indira Jaiswal, 2016 SCC OnLine Cal 475.
  7. Swapan Mondal v. Shipra Ghosh, 2019 SCC OnLine Cal 5780.
  8. Durga Rani Ghosh v. Bhavesh Verma, 2020 SCC OnLine Cal 394.
  9. Amitava Dutta v. Upendra Baitha, 2023 SCC OnLine Cal 582.
  10. Usha Barua v. Amarendra Chakraborty, 2023 Cal HC (unreported).
  11. EIH Ltd., supra note 3.
  12. Transfer of Property Act, 1882, Section 106.
  13. Shivani Properties Pvt. Ltd. v. Rama Shankar Pandey, 2021 Cal HC (unreported).