BINAPANI KUNDUS Vs. SAILA BALA DUTTA

JUDGEMENT

(1.) Their Lordships the Hon'ble Mr. Justice Anil Kumar Sen (as he then was) and Hon'ble Mr. Justice S. R. Roy have referred this Civil Rule to the Special Bench. The plaintiff opposite parties had instituted the suit against the predecessor-in-interest of the petitioner, inter alia, for eviction from a premises. On the date of the institution of the said suit, the premises was situated in an area which was not included within the limits of any Municipality. The original defendant having died, the present petitioners were substituted as defendants in the said suit. While the suit was pending, by Notification No. 740/C-4/M.T.M./4/70, dated 27th August, 1979 the area in which the suit premises was situated was constituted a Municipality. In terms of subsection (8) of Section 1 of the West Bengal Premises Tenancy Act, 1956 the provisions of the said Act were extended to the area. The point for decision in this reference is when an area is constituted a Municipality and the West Bengal Premises Tenancy Act is extended to the said area, whether the provisions of Sections 17(2) and 17(2A) of the West Bengal Premises Tenancy Act, 1956 would apply to suits for eviction which had been instituted before the said Act was extended to the area. In other words, whether even if in respect of eviction suits instituted before the date of extension of the provisions of the West Bengal Premises Tenancy Act, 1956 in the said particular area, the defendant tenant can under Section 17(2) of the said Act raise any dispute about the amount of arrears of rent and also apply under sub-section (2A) of Section 17 of the Act either for extension or for granting instalments to pay the arrear rent due from him.

(2.) The learned Munsif, 2nd Court, Barasat had rejected as not maintainable the petitioners' application under Sections 17(2) and 17(2A) of the West Bengal Premises Tenancy Act, 1956. The learned Munsif had upheld the objection raised on behalf of the plaintiff opposite parties that the suits having been instituted before the area in question was constituted a Municipality, the rights of the parties would be continued to be governed by the general law and the West Bengal Premises Tenancy Act, 1956 did not apply to the suit. Being aggrieved, the defendant petitioners moved an application under Section 115 of the Code of Civil Procedure and a learned Single Judge was pleased to issue the Rule. The said Rule was referred to the Division Bench. As already stated, the Division Bench, thereafter, referred the Civil Rule for disposal by a larger Bench. The Division Bench has formulated the following point for decision.:

(3.) The point involved in the present Reference is concluded by the decision of the Supreme Court in the case of Lakshmi Narayan Guin and others v. Niranjan Modak A.I.R. 1985 S.C. 111. R. S. Pathak, J. (as he then was) and O. Chinnappa Reddy, J. by their decision in the case of Lakshmi Narayan Guin v. Niranjan Modak (supra) dismissed the landlord's appeal and upheld the decision in the case of Niranjan Modak v. Lakshmi Narayan Guin A.I.R. 1976 Cal. 322. In their judgment in the case of Lakshmi Narayan Guin v. Niranjan Modak (supra), the learned Judges of the Supreme Court did not refer to the Division Bench decision of this Court in the case of Aswini v. Sukhendu 81 C.W.N. 523 which had overruled the decision of R. Bhattacharjee, J. (as he then was) in the case of Niranjan Modak v. Lakshmi Narayan Guin (supra) and had approved another Single Bench decision in the case of Gurdayal Singh v. Animesh 1976 Calcutta High Court Notes 301, but in view of the decision of the Supreme Court in the case of Lakshmi Narayan Guin v. Niranjan. Modak (supra), the contrary view cannot be any longer held to be good law. The Supreme Court in the case of Lakshmi Narayan Guin v. Niranjam kodak (supra), has held inter alia that upon extension of the West Bengal Premises Tenancy Act to a particular area after passing of the eviction decree but during the pendency of the appeal, Section 13 of the West Bengal Premises Tenancy Act would apply and the tenant would be entitled to protection even at appellate stage. Although the Supreme Court in the case of Lakshmi Narayan Guin v. Niranjan Modak (supra), did not expressly consider the question of applicability or otherwise of the different sub-sections of Section 17 of the West Bengal Premises Tenancy Act to a suit for eviction which is pending at the date the area in question is constituted a Municipality but the clear implication of the decision in Lakshmi Narayan Guin v. Niranjan Modak (supra) is that in case an area is constituted a Municipality, the provisions of the West Bengal Premises Tenancy Act would apply to also pending suits and appeals for eviction of tenants who enjoyed protection under the said legislation. In the instant case, the tenancy in question prima facie is now subject to the provisions of the West Bengal Premises Tenancy Act. The landlords are not entitled to evict the tenant of the suit premises except on any or more of the grounds set out in sub-section (1) of Section 13 of the West Bengal Premises Tenancy Act. For the same reasons a tenant against whom a suit is instituted on any one or more of the grounds set out in Section 13(1) of the said Act is entitled to invoke the provisions inter alia of sub-section (2) and (2A) of Section 17 of the West Bengal Premises Tenancy Act and to pray for determination of the dispute and for granting instalments to pay the arrears of rent determined by the Court.