The West Bengal Premises Tenancy Act, 1997 (new act) gives a golden chance to sub-tenants to become direct tenants even in the absence of a prior written consent of the landlord. But this right is available only if a notice is given to the landlord within July 10, 2003 and an application is filled before the rent controller within 2 months of giving the notice. Thus a window has been opened for such sub-tenants who could be evicted under the old act of 1956 and whose sub-tenancies were illegal as there was no written consent of the landlord.
After World War II, various states in India enacted rent control laws which took away the contractual rights of landlords to raise rents and evict tenants. While this did offer protection to certain weaker sections of society, its economic impact was disastrous. In the Eighties, various states in India introduced radical reforms in their rent control legislation. West Bengal has been one of the last to fall in line. The state legislature comprehensively amended the rent control law, as far back as 1997, by enacting the new act. However, the law was finally brought into force only on July 10, 2001 after persistent hesitation on the part of the ruling party to alienate the general body of tenants — a major vote bank.
This article seeks to highlight one interesting feature of the new act. The provisions of the old act prohibited a tenant from creating any sub-tenancy without the previous written consent of the landlord. In case a tenant violated this prohibition, the landlord was entitled to sue the tenant for eviction and get both the tenant and the sub-tenant evicted from the tenanted premises. Thus the tenure of an illegal sub-tenant was always precarious. The new act has now provided such sub-tenants with the opportunity to protect their subtenancies from eviction.
Under Section 26(2) of the new act, if a tenant has created a subtenancy before the commencement of the new act, with or without the consent of the landlord, then it is mandatory both for the tenant and the sub-tenant to notify the landlord of the creation of the subtenancy within 2 years from the commencement of the new act, that is July 10, 2001.
The act also offers a measure of protection to sub-tenants from eviction under certain circumstances. If there is no consent in writing of the landlord and the tenant alleges he got an oral consent and the landlord denies it, the sub-tenant would be entitled to make an application to the controller within 2 months from the issue of notice by him for protecting the subtenancy. The controller then shall declare the sub-tenant to be a direct tenant from the date of his order and he may also fix the rents payable by the tenant and the sub-tenant to the landlord.
Filling the gap
Interestingly, the tenant may still be liable to be evicted on the ground of subletting without consent. Only the sub-tenant who has given a notice gets an opportunity to become a direct tenant. But this opportunity is restricted only in cases where there is no consent in writing of the landlord and the landlord denies that he gave oral consent. In other words, the sub-tenant will not be entitled to be protected if it is established that there is no consent at all either written or oral. The controller could also question if the subtenancy was actually created before the commencement of the new act or not.
It is apparent that only those sub-tenants who have given the requisite notice within the period prescribed will be entitled to the benefit of protection. However, while law obliges both the tenant and the sub-tenant to give notice to the landlord. Failure by the tenant to give such a notice will not disentitle the sub-tenant from protection, in case he has given the requisite notice.
The controller under the new act is an important functionary. But no controller had been appointed so long. The government is finally appointing a controller from July 1, 2003. This is welcome news for landlords who had been without a remedy in matters of rent increase or eviction of tenants for the last two years.