The complete overview of The Assam Non-agricultural Urban Tenancy Act, 1955:
In this article, we delve into an act that covers the regulations on tenancy on non-agricultural lands that are in “urban areas”. This act is classed as Part-4 of our coverage of the Land Laws of Assam. Click to get access to all units, here.
What you will learn from this article:
Important definitions
Application and objectives
Protection from ejection ( and procedure)
Enhancement of rent and the procedure for fair rent
Exceptions under the Act
Important Definitions:
Land:
As per Section 3(b) of the Assam Non-agricultural Urban Tenancy Act, 1955 (hereinafter referred to as “the Act” or “this Act”)-
“Land means land which is let or occupied for residential or business purposes incidental thereto and includes sites for buildings, water, waterway, drains, ditches, canals, tanks and wells appertaining to such land”
Urban Area:
Section 3(h) of the act provides that
“Urban area means any area declared to be a Municipality or a Town Committee under the Assam Municipal Act”
Note- This definition does not include a ‘Revenue Town Land’ as defined in the Rules under the Assam land and Revenue Regulation, 1886 and the Assam Revenue Reassessment. However, this definition stands applicable to Revenue Town Lands under Section 1(2) (b) of the Act.
Landlord:
According to Section 3 of The Assam Non-agricultural Urban Tenancy Act, 1955 ,
“Landlord means a person immediately under whom a tenant holds but does not include the Government”
Permanent Structure:
Section 3(d) of the Act provides that,
“Permanent structure” means a structure made of asbestos, cement- concrete, stone, brick, iron, aluminum, wood, or any combination of the said materials. Even a structure made with bamboo or Irk walls and a thatched roof will be considered a permanent structure provided the frame is constructed with any of the aforementioned materials.
Rent:
Section 3(f) of the Act, provides that,
“Rent means whatever is lawfully payable in money or kind by a tenant to his landlord on account of the use and occupation of his holding under such landlord.”
Following are some of the elements of rent:
There must be a consideration for use and occupation of the holding (land)
There must be money or any equivalent in making a lawful payment of the dues.
It must be rendered periodically or on specified occasions (as held in Harimohan Dutta v. C.K.Sen & Co. Ltd.)
The said rendering should be to the landlord by the tenant.
Tenant:
According to Section 3(g),
“Tenant means a person who holds land under another person other than the Government and who is, or would be but for a special contract, liable to pay rent for that land to the latter and, includes a person who derives title from a tenant and a person who continues in possession of any land after the termination of his tenancy in respect for the land”
In the case Bireswar Banerjee v. Sudhir Ranjan Bose, a Full Bench decision of the Gauhati High Court, the definition of “tenant” was cleared up to include the following categories:
A person who holds land under another person and who is liable to pay rent for the same to the landlord.
A person who derives title from a tenant himself.
A person who continues in possession of the land even after termination of his tenancy in respect of that land.
Holding:
According to Section 3(a),
“Holding means a parcel or parcels of land of an undivided share thereof held by a tenant, and forming the subject matter of the same tenancy”
Application and Objectives of the Act:
The provisions of The Assam Non-agricultural Urban Tenancy Act, 1955, notwithstanding anything contained in any contract or law in force stating otherwise, will apply to all non-agricultural tenancies. It is not dependent on whether the tenancy started before or after the commencement of this Act.
The two main objectives of this Act are to give protection to an urban area agricultural land tenant from:
Arbitrary ejection
Arbitrary enhancement of rent
The key distinction of this Act with the Assam Urban Areas Rent Control Act is that the latter is geared towards protecting the enhancement of house rent and protection from arbitrary ejection from house tenants.
On the other hand, the Assam Non-agricultural Urban Tenancy Act, 1955 is geared towards protecting against enhancement and arbitrary ejection to people who have taken the land on rent from the owner.
This why agricultural lands in an urban area containing the building of the landlord rented out to other people is exempted from the provision of this Act under Section 2(C). Also, nothing in this act shall affect any permanent, heritable, and transferable rights acquired under any law or contract, as under Section 2.
This act was viewed as social legislation as the state legislature intended to protect or confer a privilege to a class of persons who were otherwise without any support from the law.
Protection from ejection- Provision and Procedure:
The Provision:
Section 5 is the primary section of this Act as it has provisions that help protect tenants from arbitrary ejections. The provisions under Section 5(1) (a) is retrospective in nature (as held in Rafiquenesa v. Lal Bahadur Chetri)
Under this section there are 3 scenarios where a tenant on a non-agricultural land in an urban area cannot be ejected:
1. Section 5(1) (a):
Where, as per a contract, the tenant is entitled to build a permanent structure and, in pursuance of the same, has built the said structure (as under Section 3(d)) for a residential purpose or a business purpose within 5 years from the date of the contract. Then he shall not be ejected from the land except on the ground of non-payment of rent.
2. Section 5(1) (a):
Where, as per a contract, the tenant is not entitled to build a permanent structure (for residential or business purpose) but has built the same with the prior knowledge or acquiescence of the landlord then, he cannot be ejected from the land except on the ground of non-payment of rent.
3. Section 5(1) (b):
Where, as per a contract, the tenant is not entitled to effect any “improvement” in the land but has affected such reasonable improvement then he shall not be ejected after payment of compensation for the improvement.
#Fact: Section 5 was amended in 1968 to include the fact a permanent structure built within 5 years of the contract should be deemed to have been built within the 5 years of a renewed contract.
To sum up, an application against ejection under Section 5(1) (a) can be applied only when:
Under the terms of the contract of tenancy, the tenant is entitled to build on the land of tenancy, a permanent structure.
In pursuing such liberty, he builds such a structure.
The permanent structure must have been constructed within 5 years from the date of the contract of tenancy on the land of the tenancy.
The permanent structure is for residential or business purposes.
The construction of the structure was with prior knowledge or acquiescence of the landlord.
If the conditions mentioned above are met then no tenant shall be ejected except on the ground of non-payment of rent (as held in Karuna Ram Medhi v. Kamakhya Prasad Baruah).
Even if the permanent structure is destroyed because of some event that is beyond the provision of the act and the control of the tenant, the provisions under Section 5(1) (a) would still apply.
The Procedure (rules) for ejection:
According to Section 11 of the Act- For ejection on grounds other than non-payment of rent, the landlord has to serve a one-month notice to the tenant to vacate the land to initiate an ejection suit.
Section 5(2) - No tenant can be ejected except in the execution of a decree of ejectment passed by the court.
No decree for ejectment passed on the ground of non-payment of rent shall be executed within 30 days from the date of the decree.
According to Section 5(3), if the tenant pays the entire decrial amount to the court within 30 days of the date of the decree of ejection then, the court shall record the decree as satisfied.
For reference – Read Chaturbhuj Kishenlal v. Sayedur Rahman (AIR 1969 A & N 178)
As per Section 6- The court shall also decide the suitable compensation for any reasonable “improvement” if such questions arise about the land. Examples of such questions can be:
Whether the tenant had affected ant improvement OR
Whether such improvement was reasonable;
Whether any compensation was to be paid;
If that was the case then, how much exactly needs to be paid and how to quantify the same?
Enhancement of rent and the procedure for fair rent:
Section 4 of The Assam Non-agricultural Urban Tenancy Act, 1955 makes it obligatory for a tenant to pay a fair and equitable rent. In case of a dispute , the rent that was paid immediately preceding the dispute is considered a fair and equitable rent unless proved otherwise.
Enhancement of rent can be done in three ways:
Enhancement of rent by written contract
Enhancement of rent in absence of a written contract
Enhancement of rent through an application to the court
1. Enhancement of rent by written contract:
Enhancement of rent is allowed provided they fulfill the conditions listed below:
It is done through a written and registered (stamped) contract.
The enhancement shall not exceed more than 19% of the previously applicable rent.
It is done only after the expiry of 6 years from the date of the contact fixing the rent now sought to be enhanced:
Provided that:
The landlord may recover a rate of rent that was being paid continuously for 3 years immediately before the claim;
The bar of 19% maximum raise can be subject to change only if the tenant binds himself to pay a further enhanced amount of rent for any improvement made at the cost of the landlord for the benefit of the tenant (to which the tenant is not otherwise not entitled) - As stated in Section 7 of the Act.
Refer to Janaki Ballav Roy v. Enat Mondal for more on this part.
2. Enhancement of rent is the absence of written contract:
A reasonable enhancement of rent will be allowed under Section 8 even in absence of a written contract provided, the landlord makes a necessary improvement to the land for the pleasure of the tenant.
3. Enhancement of rent by application to the court (Procedure for fair rent):
Either a landlord or a tenant can apply to the Civil Court for fixing fair and equitable rent. The court shall issue a notice, consider the evidence and pass an order that will be binding on both landlord and tenant from the date of application. The order shall be seen as equivalent to a decree and shall be appealable as under Section 9(2).
The considerations to be taken into account by the court are:
A maximum limit of 19% raise should be kept in mind.
If the land revenue payable to the Government or the ground rent payable to a proprietor is increased then, the enhanced revenue or ground rent may be added to the enhanced rent as under (1.) above.
Except for (2.) above, no enhancement should be made before expiry for 6 years from the date of the last enhancement.
For sufficient reasons, the court may choose to refuse any enhancement as under Section 9.
Exceptions under the The Assam Non-agricultural Urban Tenancy Act, 1955:
The lands excluded from the ambit of this Act are:
Lands under annual lease and short lease as they are, by law, incapable of being rented out, and therefore, there won’t be any tenants there “lawfully”.
Lands held by the Central Government, State Government, and the Local Authority (panchayats, municipality, etc.)
Any land containing buildings owned by the landlord but let out to another person (as they are dealt with the Assam Urban Areas Rent Control Act, 1972)
Lands used for the residence of the landlord or reserved for such purpose in its vicinity and let out to persons or rented out in lieu of service or out love and affection Section 2.
This concludes our coverage of the Assam Non-agricultural Urban Areas Tenancy Act, 1955. For more topics feel free to refer to Act as well as go through the case laws mentioned in this article.
Hope this helps, good luck!
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