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How to Evict Tenants from your Property in West Bengal and Kolkata

Introduction:

In this article, we will talk about the eviction of tenants from landlord’s property and other relevant topics related to it. It is necessary to define eviction first. So, eviction means removable of tenants from landlord’s property due to different issues or under different grounds. It is also necessary to define the landlord and tenant. According to the West Bengal Premises Tenancy Act, 1997, Section 2 (c) landlord means “landlord includes any person who, for the time being, is receiving, or is entitled to receive, the rent for any premises, whether on his account or on account of, or on behalf of, or for the benefit of, any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent, if the premises were let to a tenant and Section 2 (g) defines tenant. Tenant means any person who pays rent to the landlord for his possession on the property of the landlord. When a landlord lets out a property on rent, he or she may not have complete right over the property but they always have right to evict the tenants from his or her property an take the possession back from the tenants. The Supreme Court of India in 2016 said that the landlord cannot evict the tenants for five years if the tenants are paying their rent on time but there are many provisions to evict the tenants according to the laws of the State or Country. There are different grounds under which a landlord can evict a tenant from his or her property.

Grounds for Eviction of the Tenants from the property are as follows:-

  1. Rent not paid – This is a common reason to evict the tenant from the property. If the tenant does not pay the rents on time or has not paid the rent for a long time then the landlord has rights according to the laws of the State or Country to evict such tenant from the property and take back the possession of the property again.
  2. Sub-letting – Here, it is observed that landlord has rented her or his property to a tenant but that tenant has rented such property to another tenant and raising rents from it. In these types of cases also landlord can evict the tenant from his or her tenant.
  3. Damaging the property – If the tenant damage any part or anything of the property of the landlord then the landlord has the right to evict the tenant from the property which was rented to him or her.
  4. Self-use – If the landlord wants to use the property for his or her personal use or self-use then also they can evict the tenant from the property by giving notice to the tenant.
  5. Commercial use – If the tenant uses the rented property for some commercial purpose rather than using it for residential purpose then the landlord can evict the tenant according to the laws.
  6. Unlawful purposes or other purposes – If the tenant uses the property for any unlawful purposes or other purposes then the landlord can evict the tenant from his or her property.
  7. Loss of property value – If the tenant does anything to the property which leads to loss of property value or utility then the tenant is liable to be evicted from the property of the landlord.
  8. Property for repair and renovation – If the landlord wants to repair or renovate his property then he or she can evict the tenant form their property.
  9. Demolition of the property – If the landlord wants to construct another building and he or she needs to demolish the rented property then he or she can evict the tenant to get his work done.
  10. When the contract or agreement expires between landlord and tenant and it is not renewed then the tenant should vacate the property within one month.

How to evict the tenant?

  1. Notice to the tenant – The landlord must send a legal notice to the tenant before evicting the tenant and this notice must mention all the necessary reasons to evict the tenant from the property. Here, a landlord needs a lawyer to send a legal notice to the tenant.
  2. Notice to the tenant via court – Now, a landlord must file an eviction notice to the court mentioning all the necessary reasons to evict the tenant, date within which tenant should vacate the property and so on. But the landlord must provide reasonable time to the tenant to vacate the property. Here, the court serves an eviction notice to the tenant to vacate the property.
  3. Filling of eviction suit – There are certain circumstances where the tenant refuse to obey the court’s notice and in such situations, the landlord can hire a lawyer and file an eviction suit against the tenant. It should be filed in a Civil Court under whose jurisdiction the rented property falls.
  4. Final eviction notice – Here, the Court hears both the parties and then gives a final legal notice to the tenant to vacate the property according to the laws.

Legal provisions related to Eviction –

1) Section 5 of the West Bengal Premises Tenancy Act, 1997 states as follows – “Obligations of tenants. – (1) Every tenant shall pay rent to the landlord or his authorised agent within the prescribed period.”

“(2) Every tenant shall use the premises for the purpose tor which it was let out to him.”

“(3) Every tenant shall allow the landlord or his authorised agent to enter upon the premises and inspect the condition thereof after the service of a notice on him by the landlord or his authorised agent in this behalf.”

“(4) No tenant shall make any addition to or alteration in the premises without the written consent of the landlord.”

(5) No tenant shall sublet the premises without the consent of the landlord in writing.

“(6) No tenant shall, without the previous consent in writing of the landlord, transfer or assign his right in the tenancy or any part thereof.”

“(7) Every tenant shall pay the charges relating to the maintenance and amenities of the premises at the rate of ten per cent of the fair rent or agreed rent, as the case may be.”

“(8) Every tenant shall pay his share of municipal tax as an occupier of the premises in accordance with the provisions of the Kolkata Municipal Corporation Act, 1980 or the West Bengal Municipal Act, 1993.”

2) Section 6 of the West Bengal Premises Act, 1997 states as follows – “Protection of the tenant against eviction. – (1) Notwithstanding anything to the contrary contained in any other law for the time being in force or in any contract, no order or decree for the recovery of the possession of any premises shall be made [by the Civil Judge having jurisdiction] in favour of the landlord against the tenant, [except on a suit being instituted by such landlord] on one or more of the following grounds”:-

“(a) where the tenant has sublet, assigned or otherwise parted with the possession of whole or any part of the premises without obtaining the consent in writing of the landlord or the tenant has used the premises for a purpose other than that for which it was let out without obtaining the consent in writing of the landlord;”

“(b) where the tenant has made default in payment of rent for three months within a period of twelve months, or for three rental periods within a period of three years where the rent is not payable monthly;”

(c) where the premises are required by the landlord for the purpose of building or rebuilding or for making substantial addition or alteration thereto and such building or rebuilding or substantial addition or alteration cannot be carried out without the premises being vacated;

“(d) where the landlord or any person, for whose benefit the premises is held, reasonably requires the premises for his own occupation and the landlord or such person is not in possession of any suitable accommodation within the same Municipal Corporation or Municipality or in any other area within ten kilometres from such premises where this Act extends;”

“(e) where the tenant has given the notice to quit but has failed to deliver vacant possession of the premises to the landlord in accordance with such notice;

“(f) where the tenant or any person residing in the premises let out to the tenant has done any act contrary to the provisions of clause (m), clause (o) or clause (p) of section 108 of the Transfer of Property Act, 1882;”

“(g) where the tenant has been using the premises or any part thereof or allowing the premises or any part thereof to be used for an immoral or illegal purpose;”

“(h) where the tenant is guilty of any act of waste or of any negligence or default resulting in material deterioration of the condition of the premises;”

“(i) where the tenant or any person residing in the premises let out to the tenant has been guilty of conduct which is a nuisance or causes annoyance to the neighbours including the landlord;”

“(j) where the tenant has acquired or constructed or has been allotted, a house or flat, provided a moratorium for one year is allowed for vacating the premises.”

Explanation – This clause shall not apply to premises let out for a non-residential purpose and used for a commercial purpose;

“(k) where the landlord is a member of the Armed Forces of the Union of India and requires it for the occupation of his family and produces a certificate of the prescribed authority referred to in section 7 of the Indian Soldiers (Litigation) Act, 1925, that he is serving under special conditions within the meaning of section 3 of that Act or is posted in a non-family area;”

“(l) where the tenant, or his spouse, or son, or daughter, or parent, or the widow of his predeceased son, who is dependent on him, does not reside in the premises [ten months] and keeps the premises under lock and key.”

“(2) Where a landlord has acquired his interest in the premises by transfer, no [suit] for the recovery of possession of the premises on the ground of requirement for building or rebuilding or addition or alteration or requirement for own occupation shall be instituted by the landlord before the expiration of a period of one year from the date of acquisition of such interest.”

“(3) Where the landlord requires the premises on the ground of building or rebuilding or addition or alteration or for his own occupation and [the Civil Judge] is of the opinion that such requirement may be substantially satisfied by ejecting the tenant or a sub-tenant from a part of the premises and allowing the tenant or the sub-tenant to continue in occupation of the rest of the premises, then, if the tenant or the sub-tenant agrees to such occupation, [the Civil Judge] shall pass a decree accordingly and fix the proportionate rent for the portion remaining in the occupation of the tenant or the sub-tenant. The rent so fixed shall be deemed to be the fair rent for the purposes of this Act. If the tenant does not agree, but the sub-tenant agrees, to such occupation, no decree or order for ejectment shall be passed against the sub-tenant who shall become, with effect from the date of the decree or order, a tenant directly holding under the landlord.”

“(4) Notwithstanding anything in any other law for the time being in force, no [suit] for the recovery of possession (of any premises on any of the grounds as aforesaid, except on the ground mentioned in clause (e) of sub-section (1), shall be instituted by the landlord unless he has given to the tenant one month’s notice expiring with a month of the tenancy.”

“(5) Notwithstanding anything contained in this Act or in any other law for the time being in force, no suit or proceeding shall be instituted by the landlord within two years from the date of commencement of this Act for recovery of possession of any premises to which the provisions of the West Bengal Premises Tenancy Act, 1956 did apply but the provisions of this Act do not apply.”

“Torrence Osborno Ellie vs Sm. Namita Ganguly on 29 September 2004 Calcutta High Court”

Case Laws:

This case of the defendant/appellant is that the plaintiff/respondent filed the suit praying for eviction of the defendant from the suit premises on various grounds. According to the plaintiff/respondent, the defendant/ appellant was a tenant with respect to the suit premises under him at a monthly rent of Rs. 190/- payable according to the English calendar month. As the tenant defaulted in paying the rent and as he was guilty for causing annoyance and nuisance, damages to the suit property and as he was guilty of subletting, so the plaintiff/respondent issued a notice to the defendant /appellant asking him to vacate the suit premises. But as the tenant did not vacate, so the plaintiff/landlord filed a suit for the eviction of the defendant/tenant from the suit premises. The defendant contested the suit by filing written statement wherein he denied the allegations of the landlord on material points. He clearly denied that he defaulted in making payment of rent or was guilty of causing annoyance or nuisance, as alleged and he also denied that he was guilty of subletting of the suit premises as contended by the landlord.

Therefore, from the above discussion, the court is of the opinion that the order of reversal as passed by the learned first Appellate Court holding that the defendant/tenant was guilty of subletting of the suit premises was not at all proper and the judgment of the First Appellate Court, according to this court, was passed without properly considering the elements which are required to be proved by the landlord in establishing the allegation of sub-tenancy and as such, the said decision must be held to be perverse in nature and liable to be set aside. Considering all these things, this court is of the opinion that the judgment as passed by the learned first Appellate Court is liable to be set aside and that of the learned trial Court should be restored. In the result, the appeal succeeds on the contest. The suit is dismissed.

“M/s Popat & Kotecha property & ORS. Vs Ashim Kumar Dey (Supreme Court of India) Date of Judgement/Order: 09/08/2018”

This appeal is against the order dated 7th December 2016 passed by the Calcutta High Court in a proceeding under the West Bengal Premises Tenancy Act, 1997 for eviction of the tenant on the ground that the tenant had defaulted in payment of his share of municipal tax as an occupier under the Kolkata Municipal Corporation Act, 1980. In this case, it was evident and clear that there was default on the part of the tenant. The application of the landlord for eviction of the tenant was allowed in this case.

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