I have a tenant who was given a Five year tenancy agreement in Kolkata in 1995. The Agreement had a clause for a 15% rent increase every three years. This Agreement consequently expired in 2000 but it could not be renewed as tenant refused to make any more rental increases. This is probably because if this tenant makes anymore rent increases then his Rental payment would cross Rs. 6000 which I believe is the lower limit for Transfer of Property Act to kick in for residential properties in Kolkata.
Additionally this tenant's Total Rent was divided as per his tenancy Agreement to say 70% rent and 30% service and rental charges. The Fair Rent Act in West Bengal as far as I know is that tenant has to pay double his first rent if tenancy is below twenty years and four times if the tenancy is above twenty years.
Therefore the present status of this tenant is that he has been without a valid Agreement from year 2000 onwards. Also in the past nineteen years he has only made one 15% rent increase in 1998. My lawyer has also recently cancelled his Tenancy Agreement and sent him a standard Trespasser notice. Now he wants to start an eviction suit against him under the Tenancy Act, but I would prefer if this suit can be filed under Transfer of Property Act due to faster eviction possibilities.
My questions are:
1. Under the Fair Rent Act is the Total Rent taken to be considered for increase to either 2x (for less than 20 years) or 4x (for more than twenty years)? Or is only the rent sub-section of Total rent considered? Please be advised that tenant's tenancy agreement also mentions that Total Rent is one indivisible unit.
2. Can I ask for the arrears (increases) that this tenant has not paid but chose to stay on in the premises.
3. Can I increase his Total Rent now to 2x his first Total Rent since it is now already 19 years? After making this increase can I then file the eviction suit as the amount should now be more than Rs. 6000 and the suit can then be initiated under Transfer of Property Act.
4. If I make the rent increase now through Fair Rent Act, can I then avail another rental increase again next year as then it would be more than twenty years and so I will be eligible for a rent of 4x first rent. Can this rent increase be obtained if eviction suit is ongoing?
5. Can I anyway ask for this eviction suit be tried under Transfer of Property Act since tenant wilfully did not make the increases in violation of his Agreement. Even if his Agreement expired he chose to stay in the premises so just as his tenancy does not expire until terminated so he should accept liability for honoring his Agreement.
Answers to the following would help me make a decision regarding the best way to approach this problem. Please also correct me if any of my numerical parameters are wrong.
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