NASIMA NAQI versus TODI TEA COMPANY LTD. AND ORS

Citation: [2019] 17 S.C.R. 1048 · Decided: 26-11-2019 · Supreme Court of India · Bench: D.Y. CHANDRACHUD, AJAY RASTOGI · Disposal: Disposed off

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2019] 17 S.C.R.
NASIMA NAQI
v.
TODI TEA COMPANY LTD. AND ORS
(Civil Appeal No. 9052 of 2019)
NOVEMBER 26, 2019
[DR. DHANANJAYA Y. CHANDRACHUD AND
AJAY RASTOGI, JJ.]
West Bengal Premises Tenancy Act, 1997:
s. 2(g) second proviso – Decree of eviction against spouse
of deceased tenant, on the ground of default in payment of rent –
In respect of non-residential premises – Appeal by tenant taking
the plea that spouse of the deceased was entitled to life-time
protection from eviction – High Court dismissed the appeal –
Appeal to Supreme Court –  Held: In respect of non-residential
premises, under second proviso to s. 2(g), a right of preference is
granted to stipulated heirs of deceased-tenant – However, the
Proviso does not grant such preferential right to the spouse of such
tenant –  The exclusion of spouse of the deceased-tenant is without
rationale, discriminatory and deprives the surviving spouse of a
valuable entitlement – This is a case of casus omissus – There is
valid justification of amending the provision so as to bring the
widow of the tenant within the ambit of second proviso –  In the
facts of the present case and in view of the fact that the appellant
i.e. spouse of the deceased tenant has continued to occupy the
premises for a period in excess of seventeen years after the death
of the tenant, eviction order is upheld.
Disposing of the appeal, the Court
HELD:  1.  The effect of the first proviso to s. 2(g) of West
Bengal Premises Tenancy Act, 1997 is that the time limit of five
years is not to apply to the spouse of the tenant who was
ordinarily living with the tenant up to his death as a member of
the family and, besides being dependant on him, does not own
or occupy residential premises. Thus, in the case of residential
premises, the time limit of five years is not applicable to the
spouse of the deceased-tenant who fulfills the requirements
which have been specified. The limit of five years does not apply
to a spouse where the premises are residential. Under the
   [2019] 17 S.C.R. 1048
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second proviso, a right of preference for tenancy is granted in a
fresh agreement in respect of the premises, subject to the
condition of payment of fair rent.  The right is granted in favour
of a son, daughter, parent or widow of a pre-deceased son of the
tenant who was ordinarily residing with the tenant in the
premises up to the date of death as a member of the family and
was dependant on the tenant and who does not own or occupy
any residential premises. However, the legislature, while
enacting the second proviso, has not included the spouse of a
deceased-tenant in recognizing a right of preference for tenancy
in a fresh agreement in respect of the premises. The last
sentence of the second proviso states that it shall apply mutatis
mutandis to premises let out for non-residential purposes. Thus,
both in the case of residential as well as non-residential
premises, a provision has been made in the second proviso
under which a right of preference is granted to stipulated heirs
of the deceased-tenant where a fresh agreement is to be entered
into in respect of the premises.  The effect of the second proviso
is that the legislature has not recognized the entitlement of the
spouse while conferring a right of preference for tenancy in a
case of a fresh agreement. The High Court was correct in
observing that this is a case of casus omissus on the part of the
legislature. [Para 9] [1055-B-F]
2. This is evidently an inadvertent omission. The exclusion
of a spouse of a deceased tenant is without rationale,
discriminatory and deprives the surviving spouse of a valuable
entitlement granted to the other heirs. There is a valid
justification for amending the provision so as to bring the widow
within the ambit of the second proviso. This is a matter which
deserves to be considered by the legislature. Having due regard
to the object and purpose underlying the recognition of a right
of preference under the second proviso and the social welfare
purpose underlying the enactment of the legislation, it would be
appropriate if this aspect is considered. The recognition of a
right of preference by the second proviso is intended as a
measure of protection for the heirs of a deceased tenant and it
would but be appropriate and proper if the same protection which
is extended to a son, daughter, parent or widow of a predeceased
son in the matter of a fresh agreement of tenancy is

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