In this article, we will learn about the obligations of both the landlord and the tenant under The West Bengal Premises Tenancy Act, 1997 which is applicable to the areas included within the limits of the Calcutta Municipal Corporation and the Howrah Municipal Corporation and to the municipal areas within the meaning of the West Bengal Municipal Act, 1993
The term “obligation” denotes not merely the passive duty imposed upon the obligor but is the legal relationship subsisting between two parties by which one is bound to the other for a certain performance. These are imposed by law and as such, they will prevail over anything contrary contained in the contract. The word “obligation”, is a generic word, derived from the Latin substantive “obligatio” and has many wide, and varied meanings. According to the context in which it is used, It may include any duty imported by law. And in this sense, the legislators have used the word “obligations” both in sections 4 and 5. These are absolute obligations giving no alternative to the obligor but require its fulfillment.
Obligations of Landlord
Chapter 2, Section 4 of the West Bengal Premises Tenancy Act, 1997 lays down the provisions relating to the obligations of the landlord.
4. Every landlord or his authorised agent shall issue a written receipt in the prescribed form signed by him forthwith on receipt of the amount of rent and the charges relating to the maintenance of premises from the tenant.The West Bengal Premises Tenancy Act, 1997
(2) Every landlord shall be bound to keep the premises in good and tenantable condition.
(3) Every landlord shall be bound to take measures for due maintenance of essential supply or service comprised in the tenancy.
(4) No landlord shall claim, demand or receive any premium or other consideration whatsoever for giving his consent to the subletting of whole or any part of the premises held by the tenant.
The use of the word “shall” in every sub-section reflects the intention of the legislators. In other words, it is made mandatory to comply with the obligations as mentioned or to face penalties in the event of contravention as has been laid down in Chapter VIII of the said Act.
Section4(2) mentions ‘good and tenable condition’. This has been interpreted by the courts to mean a condition that can reasonably be expected. The tenant cannot expect his landlord to spend more money on the maintenance of the tenanted property than the amount of rent he actually receives from that property.
“in good and tenantable condition must be judged having regard to the age and class of the building and the rent payable by the tenant. A tenant paying a paltry amount as rent cannot force the landlord to do such things for which the landlord would be required to spend a substantial amount. The words “to keep” would mean the same state and tenor – Payne Haine (1847)16 M&W 541
The point of law in this regard is very clear, the landlord cannot be pressurized to maintain his tenanted property in a manner that is unreasonable at best he can bring it back to the position it was at the time when it was rented. Since, each case will differ the court will decide this question keeping in mind the amount of rent, age and location of the property, and the viability of the repairs or maintenance.
Section 4(4) mentions ‘premium’. The expression “premium” in this subsection includes any fine or other like sum and any other pecuniary consideration in addition to rent – Woodfall’s The Law of Landlord and Tenant, 25th Ed. p. 413.
Obligations of tenant
(This blog can also be read as Highlight the Rights and Duties of Tenants)
Rights and duties are two sides of a coin. Where there is a right there must be a corresponding duty. The obligations of the landlord under sec. 4 necessarily create some right in favor of the tenant. Accordingly, the tenant must have some corresponding duties. These duties are termed ‘obligations of tenants’. Similarly, the obligations of the tenants may be construed as the rights of the landlord. In that case, the corresponding duties of the landlord are to be found in sec 5.
5. Obligations of tenants. – (1) Every tenant shall pay rent to the landlord or his authorised agent within the prescribed period.The West Bengal Premises Tenancy Act, 1997
(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 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.]
Again, the use of the word “shall” unmistakably points out the mandatory nature of the obligations put by the parliament on tenants. Although, no direct provision talks about the penalty or consequences in case of non-compliance of section 5. It may create an adverse position that the landlord may leverage to evict the tenant under sec. 6 of the Act of 1997. It is also to be noted that sub-letting of premises without the written consent of the landlord is a direct violation of section 6 and a strong ground for eviction of the tenant.
Rule 4 of the WB. Premises Tenancy Rules. 1999 prescribes the time limit for payment of rent in the absence of any agreement on that behalf is by the fifteenth day of the month following the month for which it is payable.
Sub-section 2 states that the premises cannot be used for any other purpose other than for which it was rented out. For example, if the rent agreement specifically mentions that the premise is being rented for the purpose of opening a restaurant, the tenant cannot thereafter use the premise for opening an office or any other business other than restaurants.
The previous act did not specifically enable the landlord to enter the premises and inspect the property but the latest amendment provides access to the tenanted property. The landlord after serving due notice to the tenant can inspect the premises. This provision enables the landlord to inspect the property and take decisions on repairs or other maintenance needed on the premise.
Sub-section 7 and 8 of section 5 of The West Bengal Premises Tenancy Act, 1997 makes it obligatory for the tenant to pay maintenance at the rate of 10 percent of the fair rent or the agreed rent and his share of municipal taxes. Now, the question remains, can it be waved by a contract?
So far as maintenance charge is concerned, the landlord by a contract must agree unequivocally that he will not claim or recover maintenance charge from the tenant. But occupier’s share of municipal tax is payable to and recoverable by the Corporation. Hence the landlord must agree to pay both the occupier’s municipal charge and his own share to the municipal corporation in accordance with the law.
Contracts in contrary to obligations under section 4 & 5
The word “shall” is used in every sub-section of both secs. 4 and 5, indicating the mandatory nature of the obligations referred to in these sub-sections, the question is whether there can be any contract contrary to all or any of these sub-sections. It is clear that these two sections have not touched in any way the contractual rights of the parties. If there is a legal and valid contract between the landlord and tenant, it will prevail over the provisions contained in secs 4 and 5.
But where there is no such contract, the statutory obligations must be discharged. But whether there can be any legal and valid contract that contravenes any mandatory statutory provision? Although it may be said that unless the contractual right is taken away by the statute the covenants shall prevail over the statutory provisions. But if it is found that the statute has not only created some mandatory provisions but has also provided penalty or punishment in the event of a violation of such provisions, then the parties cannot, by contract, override those provisions. In other words, in that event, any contract which overrides such provisions of law cannot be construed as a legal and valid contract.
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