Case BriefsHigh Courts

Delhi High Court: In a matter with regard to the grant of leave to defend, Subramonium Prasad, J., expressed that, the tenant cannot merely make allegations that the landlord has other premises without producing some material to substantiate the same.

On being aggrieved by the order of the Additional Rent Controller rejecting the leave to defend application filed by the petitioner and resultantly allowing the eviction petition filed by the respondent (landlord), the tenant approached this, Court.

Analysis, Law and Decision

High Court expressed that, it is a well-settled position that a tenant may take all kinds of pleas in its application for leave to defend but the Rent Controller has to ensure that the purpose of Chapter III of the Rent Control Act is not defeated by granting leave to defend in every frivolous plea raised by the tenant which may result in protracting the case.

“Where the tenant seeks leave to contest the application for eviction, he must file an affidavit under sub-section (4) of Section 25-B raising his defence and this defence must be clear, specific and positive. Defences of negative character which are intended to put the landlord to proof or are vague or are raised mala fide only to gain time and protract the proceedings, must not be taken into account by the Rent Controller and such applications must be rejected.”

It was noted that, in the present case the tenant had itself produced the Will under which the landlord had claimed rent and the tenant had started paying rent and after having started paying rent to the landlord, it was not open for the tenant to turn around and challenge the title of the landlord.

“…Section 116 of the Indian Evidence Act as an estoppel on the Tenant to challenge the title of the Landlord during the continuation of the tenancy.”

Further, it was also settled that mere assertions made by tenant with respect to landlord’s ownership of other buildings and with respect to alternate accommodations were not to be considered sufficient for grant of leave to defend.

Supreme Court’s decision in, Abid-ul-Islam v. Inder Sain Dua, 2022 SCC OnLine SC 419 was referred.

Observing further, the Court stated that it is well settled that at the time of filing an eviction petition the landlord need not have a degree in the trade he/she wants to embark upon.

“…this Court does not deem it prudent, in consonance with settled law, to displace the needs of the Landlord with its own Judgment of how the Landlord should conduct its business or utilise their premises.”

In Court’s opinion, the order of Rent Controller did not suffer from legal infirmities, hence the present petition was dismissed. [Department of Posts v. Surinder Babu Jain, 2022 SCC OnLine Del 1565, decided on 25-5-2022]


Advocates before the Court:

For the Petitioners:

Ms. Anju Gupta, Mr. Roshan Lal Goel, Advocates

For the Respondent:

Mr. Ajay Gupta, Ms. Surbhi Gupta, Mr. Aishwary Jain, Mr. Anant Gupta, Advocates

Case BriefsSupreme Court

Supreme Court: The bench of Ajay Rastogi* and Abhay S. Oka, JJ has held that jurisdiction of the Civil Court is impliedly barred under the Haryana (Control of Rent & Eviction) Act, 1973 and a tenant can only be evicted under the provisions of the said Act.

Factual Background

The Court was deciding the dispute relating to suit property situated within the municipal limits of Kaithal which is governed by the Haryana (Control of Rent & Eviction) Act, 1973.

The said property was leased to Burmah Shell Oil Storage Distributing Company Ltd. for a fixed period of 20 years at the rate of Rs.35/¬ per month vide lease dated 4th June, 1958 with effect from 1st April, 1958. The lease period initially was for 20 years and the lease further contemplated renewal of the lease once for another 20 years. The lease period commenced from 1st  April, 1958 for a period of 20 years expired on 1st April, 1978 and after that renewal option for another period of 20 years was availed and that lease period also expired on 1st April, 1998. Before expiry of the period of lease of 20 years, the Central Government enacted Burmah Shell (Acquisition of Undertakings) Act, 1976, pursuant to which the leasehold rights were taken over by the Bharat Petroleum Corporation Ltd. (the respondents).

The appellants then served a legal notice on the respondents dated 30th January, 1998 in which although Section 106 of the Transfer of Property Act, 1882 was not specifically mentioned, but in pith and substance the notice was served for terminating tenancy of the respondents and later a civil suit was filed for possession of the subject land on 7th August, 1998.

The respondents argued that on expiry of the lease period, the respondents became the statutory tenant of the suit property and the appellants had been receiving rent from the respondents without any demur and further averred that the Civil Court has no jurisdiction to entertain and try the suit as the same is specifically barred by the provisions of the Act 1973.

Analysis

The Court noticed that by virtue of the statutory enactment of Act 1976, the preexisting tenancy rights held by Burmah Shell with the appellants stood transferred and vested with the Central Government and thereafter by operation of Section 7, the said rights in turn stood transposed and vested in the Government Company (Bharat Petroleum Corporation Ltd.) as the Government Company statutorily became the tenant of the appellants/plaintiffs.

In V. Dhanapal Chettiar v. Yesodai Amma, (1979) 4 SCC 214 had an occasion to examine the controversy as to whether in order to get a decree/order of eviction against the tenant in the State Rent Control Act, it is necessary to give a notice under Section 106 of the Transfer of Property Act, 1882. It was held in that judgment that  even if the lease period is determined by forfeiture under the Transfer of Property Act, 1882, still the tenant continues to be a tenant that is to say that there is no forfeiture in the eyes of law and the tenant becomes liable to be evicted and the forfeiture comes into play only if he has incurred a liability to be evicted under the State Rent Act and not otherwise and further held that even after the expiry of the period of contractual tenancy, the tenant can be evicted only in terms of provisions of the State Rent Act which is applicable in reference the subject property in question.

Further, perusing the scheme of the Act 1976, the Court noticed that from the appointed day, right, title and interest of Burmah Shell with effect to Section 5(1) stood transferred and vested with the Central Government and by virtue of Section 7(2), the vesting of tenancy rights with the Central Government stood further transposed and vested in Bharat Petroleum Corporation Ltd. and that became a statutory tenant by virtue of Section 7(3) of the Act. To that extent, Section 11 of the Act has an overriding effect to the provisions of other laws.

That being so, the jurisdiction indeed of a civil Court is impliedly barred from the field covered specifically by the provisions of the Act 1973 and that being the complete code determining the rights of a tenant/landlord to the exclusion of the other laws.

The Court, hence, found no error in the view expressed by the High Court in the impugned judgment holding that the jurisdiction of the Civil Court is held to be barred and remedial mechanism for ejectment could be possible only under the provisions of the Act 1973.

[Subhash Chander v. Bharat Petroleum Corporation Ltd, 2022 SCC OnLine SC 98, decided on 28.01.2022]


*Judgment by: Justice Ajay Rastogi


Counsels

For appellant: Senior Advocate Manoj Swarup

For respondent: Senior Advocate V. Giri

Case BriefsSupreme Court

Supreme Court: The bench of L. Nageswara Rao and BR Gavai*, JJ has reiterated the position that the tenants would not be entitled to benefit and rights under the Chennai City Tenants Protection Act, 1921 unless they are in actual physical possession of the building constructed by them.

Clarifying the aforesaid position, the Court held that in case the tenants have let out or sub-let the building or given it to third parties, including dealers or licensees, they would not be entitled to protection and benefit under the Tenants Act.

In Bharat Petroleum Corporation Limited v. R. Chandramouleeswaran, (2020) 11 SCC 718, while interpreting sub-clause (b) to Section 2(4)(ii), the Court had held that the expression “actual physical possession of land and building” would mean and require the tenant to be in actual possession and sub¬clause (b) would not apply if the tenant has sub¬let the building or has given the premises on leave and licence basis.

In Bharat Petroleum Corpn. Ltd. v. Nirmala, (2020) 11 SCC 738, the Court had lucidly explained the legal position and had held,

“On a plain reading of sub¬clause (b) we notice that it uses the words “actual physical possession”. Had   the word “possession” alone been used in clause (b), as has been done in clause (a), the legal position may have been different. However, the words “actual physical possession” are strong and emphatic. That means that the factual state of affairs has to be seen, not the legal or deemed state of affairs. There is no doubt that the appellant had handed over possession to his licensee/agent who was in actual physical possession of the suit premises. When a statute uses strong and emphatic words, we cannot twist or give a strained interpretation to the said words.”

[National Company v. Bharat Petroleum Corporation Ltd., 2021 SCC OnLine SC 1042, decided on 11.11.2021]


Counsels

For appellant: Senior Advocate V. Giri

For respondents: Senior Advocate Kailash Vasdev


*Judgment by: Justice BR Gavai

Know Thy Judge| Justice B.R. Gavai

Case BriefsSupreme Court

Supreme Court: Deciding the ambit of the bar of jurisdiction under Section 25 of the Punjab Security of Land Tenures Act, 1953 and whether the bar will operate, even in a situation, where the landlord-tenant relationship is disputed in a proceeding under Section 14A of the Act, the bench of KM Joseph* and S. Ravindra Bhat, JJ had held that the validity of the orders under Section 14A is open to scrutiny in a Civil Court, in a situation, when the tenant denies and disputes the case of the landlord that there is a landlord-tenant relationship. However,

“… a mere plea by the tenant, should not lead, without anything more, to render the Authorities helpless and bereft of power to order eviction. In a situation, where, the Authority finds the plea of the tenant to be completely frivolous and mere attempt at blocking the proceedings, the validity enacted under Section 25, cannot be diluted. The position must be understood as that the power to decide, cannot be assigned to the Authorities under the Act, of the existence of the landlord-tenant relationship.”

It was noticed that the words used in Section 25 of the Act, as already noticed, is that except in accordance with the provisions of the Act, the validity of any proceeding or Order, taken or made under the Act, cannot be questioned in any Court or before any other Authority.

The Court explained that the expression “validity of the decision or the Order” in Section 25 of the Act, would not include a case where, despite a dispute projected, that there was no landlord-tenant relationship, the Authority decides the said issue in the course of the Order of Eviction, under Section 14A, after brushing aside the tenant’s objection relating to his position, viz., that he is not a tenant. In such a situation, the validity is tied-up with the fundamental aspect of absence of power of the Authority to decide on the question of landlord-tenant relationship.

Explaining the true effect of Section 10 (2) and (3) read with Section 14A, the Court said that an application for ejectment of a tenant is to be made before the Assistant Collector under Section 14A. Such an application is to be decided after giving notice and it is to be decided summarily. Since the exclusive power to decide the application to evict the tenant has been conferred on the Assistant Collector, the law giver has further contemplated that after receipt of such an application by the Assistant Collector no other court or authority is to proceed with ‘any case relating to the same matter’ upon being informed by the Assistant Collector of the receipt of the application under Section 14A. What is more such proceeding is to be lapse after the determination of the dispute by the Assistant Collector. The law giver no doubt does contemplate an exclusive and expeditious remedy for the landlord to seek eviction brooking no over lapping of jurisdiction by exercise of power by any other court or authority on a parallel basis. However, this provision cannot mean that when the very existence landlord-tenant relationship is brought under a cloud by the tenant raising a dispute then the very premise on which the exclusive jurisdiction conferred on the Assistant Collector is not overturned.

“… the law giver has proceeded on the basis that the Assistant Collector is clothed with the power to decide a matter relating to eviction in a summary fashion. This would be inconsistent with scenario where the very existence of the landlord-tenant relationship is disputed. The law giver in other words proceeds on an assumption that the application made by the landlord is against a person who is indeed the tenant.”

It was further noticed that an Order passed under Section 14A, could be challenged by way of an Appeal, Review and Revision, as provided in the Tenancy Act, adverted to in Section 24 of the Act. Section 14A of the Act, provides for the eviction of a tenant notwithstanding anything contained in any other law. Therefore, apart from the fact that it became an exhaustive catalogue of circumstances, entitling the landlord to launch proceedings for eviction and also further designating the Statutory Authority, before which, it could be filed, it provided for a bar to challenge the validity of the orders passed, except by way of the remedies provided under the Tenancy Act.

“There would not be any justification for revisiting the principle laid down that when the relationship between landlord and tenant is contested, the Civil Court continue to have the jurisdiction despite the bar under Section 25 of the Act.”

The Court, hence, found no reason to hold that the validity of the Order passed by the Assistant Collector, as may be affirmed in Appeal, Review or Revision, cannot be questioned in a Civil Court, if the expression “validity” is conflated with legality. If an Order is illegal, it would be invalid.

[Assa Singh v. Shanti Prasad, 2021 SCC OnLine SC 1064, decided on 17.11.2021]


*Judgment by: Justice KM Joseph

Know Thy Judge| Justice K.M. Joseph

Case BriefsSupreme Court

Supreme Court: Interpreting the provisions of the Andhra Pradesh Tenancy (Andhra Area) Act, 1956, the bench of UU Lalit and S. Ravindra Bhat*, JJ has laid down the twin conditions that make a valid surrender of tenancy,

  • firstly, three months’ notice in writing to the landlord, and the Special Officer about the intention to surrender the tenancy, and
  • secondly, satisfaction recorded by the Special Officer in an order, after due inquiry about the voluntary nature of the surrender of tenancy.

The Court explained that Section 13 of the Act enacts that, notwithstanding anything contained in Sections 10, 11 and 12, a landlord cannot terminate the tenancy and evict his cultivating tenant except by an application made in that behalf to the Special Officer on the grounds mentioned in that section and if the cultivating tenant intends to surrender his tenancy the procedure prescribed by Section 14 of the Act has to be followed.

Thus, as a matter of law, the requirement of notice for the prescribed period of three months, to the landlord, and the concerned revenue official is mandatory. This provision, in the form of a procedure enacted for the welfare and protection of a tenant has to be construed in its literal and plain terms. The material phrase in Section 14 (1) is that “the surrender of such holding shall take effect only after it is accepted by the Special Officer on being satisfied, after making such inquiry as he thinks fit, that such surrender is voluntary and genuine.”

The Court, hence, held that not following the prescribed procedure, invalidates the so-called surrender.


Important Rulings


Adapala Subbaiah vs. Shaik Hasan Saheb, 2006 SCC OnLine AP 943

“As per that Section 14, surrender of holding by a tenant can only be at the end of any agricultural year, after giving his landlord and the Special Officer at least three months’ notice expiring with the end of such agricultural year. ‘Agricultural year’ is defined in Section 2(a) of the Act as the year commencing on the 1st day of June or such other date as may be notified by the Government in the Andhra Pradesh Gazette in respect of any locality having regard to the usage or custom of the locality in respect of the commencement of agricultural operations therein. If the respondent really had cultivated the land of appellant and had vacated the same in 1981-82, in view of Section 14 of the Act, he should have given a notice in March 1981 both to the appellant and the Special Officer intimating them about his intention to vacate the land. It is not even the case of appellant that any such notice was given by the respondent. When the tenancy Act confers special rights including the right to purchase the land is given to the tenant, no ordinary prudent tenant would vacate the land that too without following the procedure prescribed in the Act. Therefore, the contention of the appellant that the respondent took the land on lease for only one year and vacated it at the end of the year is difficult to be believed.”

Mygapula Venkateswara Rao vs. Ponangi Venkataraju, 1990 SCC OnLine AP 26

“This requirement of giving notice before three months is stipulated with a view to safeguard the interests of the tenant So long as the surrender as contemplated under Section 14 of the Act has not been completed and final order has been passed in pursuance of an oral or written agreement if any entered into between the landlord and the tenant, it cannot be said to be a final one. Unless and until final order has been passed with regard to the surrender by the Special Officer under Section 14 of the Act, the relationship of landlord and tenant cannot be said to have been extinguished.”

[Musunuri Satyanarayana v. Dr. Tirumala Indira Devi, 2021 SCC OnLine SC 984, decided on 27.10.2021]


Amicus Curiae: Advocate Sridhar Potaraju


*Judgment by: Justice S. Ravindra Bhat

Know Thy Judge| Justice S. Ravindra Bhat

Op EdsOP. ED.

“It is not wealth I seek, it is not fame that I want, I crave for a home expressing the eternal yearning of all living beings for habitat.”

– Rabindranath Tagore

On 2-6-2021, the Union Cabinet approved and circulated the Model Tenancy Act, 2021 (for short “the Model Act”) to all States and Union Territories with an intent to usher a new chapter in the landlord and tenant relationship and lend impetus to the business of rental housing in India. Decades of indifference shown to the Indian landlord contesting lengthy civil suits in courts is one of the main reasons leading to a widespread situation of vacant residential and commercial premises1. Several States enacted rent acts to supersede their half a century old Rent Acts, but many of them remain unenforced and never saw the light of the day.2 Various experts and commissions3 prominent being the Administrative Reforms Commission and the National Commission on Urbanisation observed that the Rent Acts in their present form have not served the long-term interests of the tenant. Time and again the need for reform in the Rent Acts to encourage investment in housing was emphasised. Thus, a new tenancy legislation was long overdue. This article analyses whether the Model Act, a proposed statutory framework, addresses the grievance of the landlords and tenants and justifies the euphoria surrounding it.

Historical perspective

The Rent Acts are social welfare legislations and fulfil the dual purpose of protecting the tenants from frivolous evictions and exorbitant rents. The first Rent Act in the United Kingdom was “The Increase of Rent and Mortgage Interest (War Restrictions) Act, 1915” and was enacted to address scarcity of accommodations caused by the First World War.4 It prevented landlords from profiteering and exploiting tenants when housing demand exceeded supply. In British India, the first Rent Act was enacted for Bombay in 19185and thereafter separately in Calcutta6 and Rangoon in 19207. Meanwhile, the Transfer of Property Act, 18828 operated in the remaining part of British India. Thereafter, after almost two decades, Rent Acts were enacted in different parts of the country to address the scarcity of accommodations and soaring rents caused by the Second World War.9 The measure was deemed necessary in order to give protection to the tenants who would have otherwise been thrown out on the slightest pretext or even without any pretext and would have been rendered homeless causing them untold misery.10 After India attained independence, newly formed States continued the protection extended to tenants, as newer issues had emerged, even though the great wars had ended. Industrialisation, commercialisation and inflow of population to the urban areas, gave ample opportunity to landlords to exploit tenants and led to the enactment of the Rent Acts which were primarily tenant driven.11Rack renting and large-scale eviction of tenants under the guise of the ordinary law, exacerbated those conditions making the economic life of the community unstable and insecure.12

The Rent Acts passed by various State Legislatures drastically curtail the landlords’ power to enhance rent and evict the tenant.13 After the tenancy is determined, tenants attain the status of statutory tenants” and enjoy protection from eviction till a decree for eviction is passed under the limited grounds specified in the Rent Act. More so, power of the courts to direct eviction is strictly confined to the grounds enumerated under the Rent Act. The Rent Court is not competent to pass a decree for possession either in invitum or with the consent of the parties on a ground which is dehors the Act or ultra vires the Rent Act i.e. the existence of one of the statutory grounds is a sine qua non to the exercise of jurisdiction by the Rent Court. Even parties cannot by their consent confer such jurisdiction on the Rent Court to do something which, according to the legislative mandate, it could not do.14

Salient features

As the Model Act will be a guiding beacon to States and may lead to enactment of new Rent Acts, it is apposite to examine its salient features—

            Object: At the outset, the Act has three avowed objectives15, first, to establish a rent authority16 to regulate renting of premises, second, to protect the interests of landlords and tenants and third, to provide speedy adjudication mechanism for resolution of disputes and connected matters.

            Dispute redressal framework: The Act proposes a three-tier mechanism for redressal of disputes; Rent Authority at the bottom, Rent Court at the middle and Rent Tribunal at the top.The Rent Authority has the jurisdiction to deal with disputes regarding revision of rent, disputes as to whom rent is payable17, disputes regarding repair and maintenance of property18, punishing a property manager19 and disputes regarding withholding of essential supply or service.20 The Rent Court21 in turn would hear appeals against orders passed by the Rent Authority22. The Rent Tribunal23 which is at the top of the hierarchy would hear appeals against the orders passed by the Rent Court. The jurisdiction of the civil court to entertain any suit or proceeding relating to the Model Act has been excluded24, however, a dispute relating to title of the premises remains with the civil court.25 Thus, the original and first appellate jurisdiction now vests with the administrative services, which is a welcome step as burden of tenancy disputes on the judiciary would decrease.26

            Written tenancies: As opposed to the Rent Acts, the Model Act bars oral tenancies and imposes a prohibition on the landlord and tenant from letting out or taking on rent any premises except by an agreement in writing and submitting information to the rent authority.27The information provided is to be conclusive proof of the facts relating to tenancy and in the absence of any information both the landlord and tenant shall not be entitled to any relief under the provisions of the Act.28

            Subletting: There is a prohibition on subletting or transferring the tenant’s rights in the premises except by entering into a supplementary agreement and submitting information to the Rent Authority.29

      Limited period tenancies: Tenancies entered into after the commencement of the Model Act would be limited period tenancies, being valid for the period agreed to between the landlord and the tenant.30After the period of tenancy ends, a landlord is entitled to possession of premises ipso facto without having to prove any ground as was required under the rent acts. Thus, the ingrained fear amongst landlords that they would lose control over the property stands removed. However, during the period of tenancy, if the landlord wants to evict a tenant, the broad grounds for eviction have been enumerated under Section 21(2) and are:

  1. non-payment of rent;
  2. sub-letting without landlord’s consent;
  3. misuse of premises31;
  4. repair, reconstruction or ancillary purposes which cannot be done unless tenant vacates the premises;
  5. repairs, construction or ancillary purposes for change of its use as a consequence of land use by the competent authority;
  6. landlord having contracted to sell the property after having received a written notice to vacate the premises from the tenant or having taken any other step; and
  7. tenant having carried out structural change or erected any permanent structure without the landlord’s consent.

It is noteworthy that bona fide need of the landlord or his family members as a ground for eviction in the Rent Acts is not available under the Model Act. The same is available only to the legal heirs of the landlord after his death.32 In case a tenant overstays after the tenancy period expires, he would be liable to pay enhanced rent to the landlord at the rate of twice the monthly rent for the first two months and thereafter at the rate of four times the monthly rent till the occupation continues.33 If however, the tenancy expires during “force majeure” the same will continue uptill one month after its cessation.34

Time-frame: The Model Act mandates timely disposal of cases and provides that the Rent Authority, Rent Court and Rent Tribunal have to decide cases filed before them within a time period of sixty days, failing which reasons have to be recorded in writing for non-compliance.35

Special categories of landlords: Special provisions in some Rent Acts dealing with specified categories of landlords like widows, disabled persons, members of armed forces, government employees, etc. are absent in the Model Act presumably because it incorporates the concept of limited tenancies and timely disposal of cases.

      Heritability: The Model Act leaves no room for ambiguity and specifically provides that tenancy would be heritable and in case of death, the successors of the landlord and tenant would be bound by the rights and obligations for remainder of the tenancy.36

            Rent: Payment of rent and its revision would be as per the terms of the tenancy agreement.37In case the landlord carries out any improvement, addition or structural alteration in the premises which does not include necessary repairs, the landlord can increase the rent by an amount agreed to by the parties. The concept of “standard rent” or “fair rent” in the Rent Acts is absent from the Model Act. As a result, the parties are bound by the agreed rent during the period of tenancy and the landlord can apply for revision of rent to the Rent Authority only where there is a dispute with respect to revision of rent falling within Section 9 of the Model Act.38

            Security deposit: The wide prevailing practice of landlords exploiting tenants and compelling them to deposit exorbitant amount of security deposits commonly known as “pagri” has also been put to an end by the Model Act by putting a cap on the security deposit being not more than two months’ rent in case of residential premises and six months’ rent in the case of non-residential premises.39

            Repair and maintenance: Frequent squabbles between landlords and tenants regarding responsibilities of repair and maintenance of the premises, in the absence of any agreement, have also been given a quietus by dividing the responsibilities under Part A and Part B of Schedule lI to the Model Act40. If the landlord or the tenant do not carry out their respective responsibilities, the other party can do it and the expenses can be deducted or claimed in the manner provided for in Section 15.41

            Property Manager: The Model Act also grants statutory recognition to “property managers” and regulates their conduct.42A property manager is entrusted with certain duties under Section 19 of the Model Act, failure of which will entail his removal or imposition of costs to compensate any loss incurred by the landlord or tenant.

            Thus, the Model Act addresses almost all issues of contention between the landlord and tenant and will surely yield positive results once it is implemented. However, as the Model Act applies only to new tenancies, it is also necessary to understand the fate of existing tenancies as they constitute a substantial portion of arrears in courts.

Existing tenancies        

            Before analysing the Model Act with respect to existing tenancies, it will be worthwhile to analyse the Draft Act, 2015 which after undergoing substantial amendments has led to the Model Act in its present form, as the Draft Act contained provisions for existing tenancies. Under the Draft Act, information about existing agreements was to be given to the Rent Authority and in case there was no agreement, a written agreement was to be entered into and thereafter information given. The rent payable in the case of existing tenancies after a period of 12 months was to be the rent as agreed between the landlord and tenant. In case they were unable to reach a mutually agreeable rent after a period of 12 months, the landlord had the option to terminate the tenancy. Failure to agree to the rent payable after 12 months, was one of the grounds for eviction of the tenant under the Draft Act. Plaintiffs who were contesting proceedings under the Rent Acts also had the liberty to withdraw the proceedings with liberty to file fresh application in the respect of the same subject-matter under the Draft Act within a specified timeframe. Thus, existing tenancies would have come within the ambit of the Draft Act within 12 months and in case no agreement was reached between the parties, the landlord could evict the tenant. This, would have brought huge relief for the landlords and saved them from lengthy contests in courts.43However, as the Model Act has not been made applicable to existing tenancies, all the aforesaid provisions have been omitted.

            Turning to the Model Act, it regulates tenancies after the commencement of the Act, but at the same time, by Section 47(1) repeals the existing Rent Acts in the State and Union Territories. Section 47(2) which is a saving clause of limited nature, provides that cases and proceedings pending under these Acts would continue to be dealt with as if the present Act had not been enacted. Thus, pending proceedings initiated by the landlord or tenant regarding eviction or fixation of standard rent” or “fair rent” would continue as a result of the deeming fiction created by the savings clause.

            However, a pertinent issue arises as to what would be the fate of the landlords and tenants who have not initiated any proceedings under the rent acts i.e. whether the protection of the Rent Acts would continue to be available to them and fresh proceedings would still have to be initiated under the Rent Acts despite its repeal.44

            It is submitted that it is well settled that a statute after its repeal, is completely obliterated. Repeal destroys all inchoate rights and all cause of actions that may have arisen under the repealed statute.45 If however, the right created by a statute is of an enduring character and has vested in the person, that right cannot be taken away because the statute by which it has expired.46

            In Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal & Co.47 the respondent landlord had filed an eviction petition under the Delhi Rent Control Act, 195848 in respect of a premises having a monthly rent of Rs 8625. When the petition was pending, Section 3(c) of the Delhi Rent Control Act, 195849 was brought in, which made the Act inapplicable to premises having monthly rent of more than Rs 3500. The question arose, whether the amendment affected pending eviction proceedings. The Supreme Court observed firstly, that the right of a tenant under the Rent Act at the best could be said to be a protective right which cannot be construed to be a vested right. In view of the enactment of the Rent Act, the rights and remedies available to a landlord under the general law remains suspended but the moment this protection is withdrawn the landlords normal vested right reappears which could be enforced by him. Secondly, the landlord has no vested right under Section 14 of the Act but has an “acquired” or “accrued” right if the petition is pending. The Court laid down that in cases where Section 6 of the General Clauses Act, 189750 is applicable the courts have to scrutinise whether a person under a repealed statute had any vested right. In case he had, then proceedings would be saved. However, in cases where Section 6 is not applicable, it is not a vested right, but all those under various sub-clauses from (a) to (e) of Section 6 which are “acquired” and “accrued”. In such cases pending proceedings are to be continued as if the statute has not been repealed. Ason filing a petition for eviction of the tenant the privilege accrued with the landlord and is thus not affected by repeal of the Act in view of Section 6(c) and the pending proceeding is saved under Section 6(c) of the Act.

            In Parripati Chandrasekhararao v. Alapati Jalaiah51 an application was filed by the tenant on 13-2-1983 for fixing fair rent of a premises whose monthly rent was Rs 1300. Subsequently, w.e.f. 26-10-1983 premises having monthly rent of more than Rs 1000 were exempted from the provisions of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 196052. The Supreme Court concurred with the decision taken by the Rent Controller in dismissing the tenant’s application and observed that the protection afforded by the Rent Act does not create any vested right in favour of the tenant beyond the period of protection and when the protection does not exist, the normal relations of the landlord and tenant come into operation.

            In Vishwant Kumar v. Madan Lal Sharma53again it was observed that the right of a statutory tenant to pay rent not exceeding standard rent or the right to get standard rent fixed is a protective right and not a vested right and does not survive after the repeal of the Rent Act.

            In a different factual scenario, in State of Haryana v. Hindustan Construction Co. Ltd.54 sales tax assessment of the respondent Company was completed for an assessment year and refund was ordered under the Haryana General Sales Tax Act, 1973. Subsequently, the Act was repealed by the Haryana Value Added Tax Act, 200355. After the Act of 1973 was repealed, a show-cause notice was issued to the respondent Company regarding the refund ordered earlier, in exercise of suo motu revisional powers under Section 40 of the Act of 1973 and thereafter, by an order the respondent was held liable for recovery. The Supreme Court concurred with the High Court and observed that the assessment under the 1973 Act having been completed and refund ordered, the exercise of suo motu revisional powers under Section 40 of the same after repeal was clearly unsustainable in view of the contrary intention expressed under Section 61 of the 2003 Act56, saving only pending proceedings. It was also held that Section 4 of the Punjab General Clauses Act, 1858 will have no application in view of the contrary intendment expressed in Section 61 of the repealing Act.

            Thus, in view of the aforesaid decisions, fresh proceedings under the Rent Act cannot be preferred by the landlord or the tenant after its repeal and pending proceedings alone would continue, as a result of the deeming fiction created by the saving clause contained in the Model Act. However, as stated supra, the landlords or tenants can seek remedy under the general law i.e. the Transfer of Property Act, 1882as their rights and duties under the general law get revived. Landlords can also enter into fresh agreements to avail the provisions of the Model Act if the tenants agree to it.57

Conclusion

            The Law Commission in its 129th Report submitted in the year 1988 had pointed out that the largest litigation in urban courts relates to rent and possession of urban dwellings and if the same is handled in a scientific manner, the burden on the court system in urban areas would be considerably eased.58 In a catena of judgments including Prabhakaran Nair v. State of T.N.59 the Supreme Court observed that the laws of landlord and tenant must be made rational, humane, certain and capable of being quickly implemented and that the courts should be relieved of the heavy burdens of rent litigations.

            Considering the prevailing social scenario, the Model Act is a step in the right direction as far as new tenancies are concerned. By guaranteeing recovery of possession and timely resolution of disputes it brings landlords and tenants on a level playing field and would certainly succeed in giving a huge impetus to the business of rental housing in the country. By entrusting the Rent Authority and Rent Court with original and appellate jurisdiction, the Model Act will reduce the burden on the courts.

            However, with respect to existing tenancies it is a mixed bag. Historically, Rent Acts were enacted at a time when there was acute scarcity of accommodations with the object of preventing landlords from exploiting tenants.60 More than half a century later, the situation stands reversed and landlords are on the receiving end. It is common knowledge, that due to long delays in the justice-delivery system, tenants demand a premium for vacating residential and non-residential accommodations in spite of having shifted to a suitable alternative accommodation. Landlords too, utilise muscle power to recover possession to avoid undertaking a lengthy judicial journey. If States adopt the Model Act verbatim, economically weaker tenants have a reason to rejoice, but landlords of existing tenancies who have been waiting for decades for a new tenancy legislation, would be disappointed. Arrears of tenancy disputes would also continue to burden the Indian judiciary. However, as the relation of landlord and tenant falls under the State List of the Constitution61, States can amend the Model Act depending on their socio-economic conditions.

            For now, the Model Act is a sheet anchor and a step in the right direction.


[1]Advocate & Insolvency Professional practising at the Madhya Pradesh High Court.  Author can be reached at   abhishekgulatee@gmail.com.

1As per 2011 Census, more than 1 crore houses are lying vacant in urban areas across India.

2 For instance, the M.P. Parisar Kirayedari Adhiniyam, 2010; The Delhi Rent Act, 1995.

3The Report of the National Commission on Urbanisation, 1988 attributed the main factors inhibiting investment in rental housing and in the maintenance of rental stock to the various rent control laws; the National Urban Housing and Habitat Policy, 2007 stipulated preparation of a Model Rent Act by the Government of India to promote rental housing on the principle that rent of a housing unit should be fixed by mutual agreement between the landlord and tenant for a stipulated lease period prior to which, the tenant will not be allowed to be evicted and after the expiry of the said lease period, the tenant will not be permitted to continue in the said housing unit.

4Kemp P., Private Renting in Transition, 2004 p. 21.

5The Bombay Rent (War Restrictions) Act, 1918.

6The Calcutta Rent Control Act, 1920.

7The Rangoon Rent Act, 1920.

8 The Transfer of Property Act, 1882.

9For instance, The New Delhi House Rent Control Order, 1939; The Central Provinces and Berar Regulation of Letting of Accommodation Act, 1946.

10Ramcharan Ramdin Ahir v. Resident Deputy Collector, 1970 SCC OnLine Bom 35 para 7.

11Liaq Ahmed v. Habeeb-ur-Rehman, (2000) 5 SCC 708, para 3.

12Nagindas Ramdas v. Dalpatram Ichharam, (1974) 1 SCC 242, 248.

13D.C. Bhatia v. Union of India, (1995) 1 SCC 104 at page 112.

14Nagindas Ramdas v. Dalpatram Ichharam, (1974) 1 SCC 242, 249.

15See the long title of the Model Act.

16An officer not below the rank of a Deputy Collector, appointed under S. 30.

17S. 14(3) of the Model Act.

18S. 15 of the Model Act.

19S. 19 of the Model Act.

20S. 20 of the Model Act.

21An Additional Collector or equivalent ranking officer appointed under S. 33.

22S. 32 of the Model Act.

23 A District or Additional District Judge appointed under S. 34.

24 S. 40(1) of the Model Act.

25S. 40(2) of the Model Act.

26Before the Model Act, a Draft Model Tenancy Act was prepared in 2015 (for short “the Draft Act”) in which the Rent Court was to consist of one or more members of the State Higher Judicial Services and the Rent Tribunal was to be a multimember Tribunal consisting of retired High Court Judges. The same is partly in line with the recommendation contained in the Report of the National Commission on Urbanisation, 1988 to the effect that tenancy-related litigation should be brought out of the purview of civil courts.

27Ss. 4(1), (3) and (4) of the Model Act.

28 S. 4(6) of the Model Act.

29S. 7 of the Model Act.

30S. 5 of the Model Act.

31 S. 21(2)(d) broadly defines misuse as encroachment, use of premises which causes public nuisance, property damage, detrimental to landlord’s interest or for immoral or illegal purpose.

32S. 22 of the Model Act.

33 S. 23 of the Model Act; Under the Rent Acts, after the termination of tenancy, a tenant becomes a ‘statutory tenant’ till the time an eviction decree is not passed against him. The same position continues under the Model Act.

34S. 5(3) of the Model Act.

35Ss. 31, 35(2) and 37(2) of the Model Act.

36S. 6 of the Model Act.

37Ss. 8 and 9 of the Model Act.

38S. 10 of the Model Act.

39See S. 11 of the Model Act.

40Part A lists repairs to be done by the landlord and Part B lists repairs to be done by the tenant.

41 Inter alia, a landlord can deduct the expenses from the security deposit and a tenant can deduct the expenses from the rent for the succeeding months.

42S. 2(f); “property manager’ includes “rental agents”. A rental agent means any person who negotiates or acts on behalf of the parties and includes dealers, brokers or middlemen within its definition defined under S. 2(g).

43In the State of Madhya Pradesh too, the unenforced Rent Act, the  M.P. Parisar Kirayedari Adhiniyam, 2010 contains provisions for existing tenancies. Under the Adhiniyam, all existing month to month tenancies would become limited period tenancies within a period of 3 years from the date of commencement of that Act and thereafter, the tenant would have to revert possession immediately.

44 One of the salient features to the Model Act is said to be its prospective operation and that it would not affect existing tenancies, however as discussed further in this article, the savings clause would be limited in its operation to pending proceedings only.

45Keshavan Mahadeva Menon v.State of Bombay, 1951 SCR 228.

46M.S. Shivananda v.Karnataka SRTC, (1980) 1 SCC 149, para 12.

47(2001) 8 SCC 397, para 17.

48Delhi Rent Control Act, 1958.

49 Delhi Rent Control Act, 1958.

50 General Clauses Act, 1897.

51(1995) 3 SCC 709.

52 Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960.

53(2004) 4 SCC 1.

54(2017) 9 SCC 463.

55 Haryana Value Added Tax Act, 2003.

56 Section 61, Haryana Value Added Tax Act, 2003.

57S. 4(6) of the Model Act.

58129th Report of Law Commission of India on Urban Litigation – Mediation as Alternative to Adjudication (August 1988). https://lawcommissionofindia.nic.in/101-169/Report129.pdf.

59(1987) 4 SCC 238, para 36.

60Mohinder Kumar v. State of Haryana, (1985) 4 SCC 221, para 11.

61Entry 18 of State List, Schedule VII to the Constitution of India.

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan, SA Nazeer and Hemant Gupta*, JJ has held that there can be presumption of Hindu joint family property if the property has been acquired by the male member or if the same has been treated as joint Hindu family. But no such presumption is attached to a business activity carried out by an individual in a tenanted premise.

Background

The plaintiff had filed a suit for declaration before the competent civil court stating that he is a tenant in the suit premises and is entitled to continue in the suit premises as a tenant on payment of monthly rent. The basis of such declaration was that Ram Sharan Ram, the great grandfather of the plaintiff, predeceased his brother Ram Sewak Ram who died issueless and his widow predeceased him. Ram Sewak Ram was carrying out joint family business of hotel in the premises of the Wakf Board. Due to advanced age, he handed over the possession of the hotel business to his nephew Devendra Prasad Sinha, the grandfather of the plaintiff. The grandfather of the plaintiff succeeded to the tenancy as member of the joint Hindu family. After his death, defendant Nos. 1 to 3 succeeded to tenancy as members of the Joint Hindu Family. The shop was being run by Surendra Kumar, son of Devendra Prasad Sinha, when the grandfather of the plaintiff fell ill. Surendra Kumar, the father of the plaintiff started paying rent to the Wakf Board. However, Surendra Kumar later joined service and the hotel was being run through the servants. The plaintiff had started running the hotel since 1988. On account of disputes over the management, the hotel was closed and it remained closed for several years. It is the plaintiff who wanted to resume the hotel business in the premises in question and thus communicated with the Wakf Board to continue the hereditary tenancy of the shop as Karta in his name.

The Wakf Board in its written statement asserted that Md. Salimuddin was the duly appointed Mutawalli of the Wakf estate in question and the appellant was a tenant duly inducted by the Management Committee. It was further pleaded that the defendants had no knowledge that Ram Sewak Ram was carrying any business of hotel but that Devendra Prasad Sinha was a tenant in the suit premises who had surrendered his tenancy rights in favour of Md. Salimuddin through a written letter dated 31.5.1996 and thereafter handed over vacant possession of the premises. Subsequently, the appellant had been inducted as a tenant on a monthly rent of Rs.600/- on 5.6.1996.

Wakf Tribunal’s judgment

The writing on paper to surrender the possession was admitted by the witness. There was no oral or documentary evidence that Devendra Prasad Sinha had surrendered the premises where he was running joint family business. The plaintiff did not even suggest that Devendra Prasad was managing a joint family business and thus in the absence of such suggestion it was difficult or rather impossible to believe that Devendra Prasad was managing a joint family business.

Consequently, the suit was dismissed.

High Court’s judgment

The suit premises were let out to Ram Sewak Ram who carried out joint family hotel business in the said premises until his death in January, 1960. Thereafter, defendant No. 1 became the Karta and succeeded to joint family business including the suit premises. He could not have surrendered the tenancy in favour of Mutawalli on 31.5.1996 without the consent of other members of the joint family.

Consequently, the judgment of the Tribunal was set aside and also a direction was issued to dispossess the appellant from the suit premises and to handover the vacant possession of the suit premises to the plaintiff.

Supreme Court’s judgment

Whether Shri Devendra Prasad Sinha was running the joint family business and/or whether the act of surrender of possession was that of a joint Hindu family business or only of surrender of tenancy; or that as a Karta, surrender of tenancy was for the benefit of the joint Hindu family?

“Even if a male member had taken premises on rent, he is tenant in his individual capacity and not as Karta of Hindu Undivided Family in the absence of any evidence that Karta was doing the business for and on behalf of Joint Hindu Family.”

The Court held that the High Court has presumed the existence of the joint family of which Ram Sewak Ram was said to be the Karta from perusal of the Ration Card issued on 2.12.1949, however,  Hindu Joint Hindu Family cannot be presumed to be in existence only on the basis of Ration Card unless there is evidence that the funds of joint Hindu Family were invested in the business in the tenanted premises.

Hence, the High Court has committed a basic error of law and fact that the payment of rent or the Ration Card proves that the tenant was carrying business as a Joint Hindu Family Business.

Further, mere payment of rent by great grandfather or by the grandfather of the plaintiff raises no presumption that it was a joint Hindu family business.

Whether on account of cessation of activities of running of the hotel, the act of the surrender of tenancy is in fact for the benefit of the joint family?

While the High Court found that the letter of surrender was not reliable or tenable, the Court noticed that the executor of the surrender letter has admitted such surrender letter in the written statement and while appearing as a witness. Further, the Mutawalli Md. Salimuddin has also accepted the surrender letter in the written statement and while appearing in the witness box.

Hence,

“Merely for the reason that signatures in the translated copy do not tally with the Urdu copy is not sufficient to hold the surrender letter as unreliable as the translation can be incorrect but the correctness of the document in has not been disputed by the executor or by the acceptor.”

The said document could not have been said to be unreliable on the basis of the statement of the plaintiff who is not a party to such transaction. The Court, hence, concluded that,

“It is one thing to say that the document is unreliable and another to say that the document does not bind the plaintiff. We have no hesitation to hold that the document was validly proved and accepted by the Wakf Board. Therefore, the act of surrender of tenancy was for the benefit of the Joint Hindu family.”

[Kiran Devi v. Bihar State Sunni Wakf Board,  2021 SCC OnLine SC 280, decided on 05.04.2021]

*Judgment by Justice Hemant Gupta

Case BriefsHigh Courts

Karnataka High Court: Krishna S. Dixit, J. dismissed the petition being devoid of merits.

Background

The facts of the case are such that the property in question belongs to the ownership of the respondent-plaintiff–“Mutt” and the husband of the petitioner-defendant during his life had taken the same on lease vide registered lease deed for the purpose of erecting a building for a period of 99 years on a yearly rent of Rs. 50 and delayed payment of rent at a rate of 6% p.a. so that after the expiry of the tenure, the respondent-plaintiff shall put the same to the use of its pilgrims. The petitioner, however, remained in the arrears of rent for years, hence a legal notice was issued by the respondent-plaintiff terminating the lease for non payment of rents. The petitioner thereby replied that the office of the respondent Mutt declined to accept the tender of rental amount since 2009 stating that the land has vested in the State Government under the provisions of the Karnataka land Reforms Act, 1961. A suit was filed seeking an order for relieving her from forfeiture of the lease which was rejected. Aggrieved thereby the petitioner filed application in Form 7A seeking grant of the land under the provisions of the Karnataka land Reforms Act, 1961.

Observations and Decision

The Court observed that the text and content of Section 114 require bonafide on the part of the tenant who has been remaining in arrears of rent; if that is lacking, a tenant cannot be permitted to seek refuge under the umbrella of this provision; otherwise this provision runs the risk of being used as an instrument of unconscionability to defeat the accrued right of re-entry accruing to the landlord; in deciding whether there is bonafide facts and circumstances of the case need to be kept in view.

The Court analyses that in the case at hand, the petitioner lacks bonafide because she has filed the application seeking grant of the land under Section 77 A of the Karnataka land Reforms Act, 1961 as amended; nothing prevented her even then, from making payment of arrears of rent particularly when the rate of rent is apparently frugal, still the petitioner chose to remain in arrears having built a huge building. This clearly shows the incongruity on the part of the petitioner in somehow squatting on the property of the respondent without complying with the agreed covenants of tenancy.

The Court observed that it is true that Section 114 of T.P. Act gives right to apply for such a grant merely because a tenant can so apply, it cannot be readily inferred that his of act of remaining in arrears of rent n that found should be treated as bonafide an act contrary to law may still lack bona fide depending upon the circumstances of a case; for an act being bona fide, one has to show that it is done in good faith i.e. with honesty, sincerity and genuineness and without any element of culpability from this inarticulate premise.

The Court held “the writ petition being devoid of merits is liable to be dismissed” [Velthoria Sequiera v. Sode Vadiraja Mutt, Writ petition No. 30053 of 2019, decided on 16-03-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Rajasthan High Court: Mahendar Kumar Goyal, J., dismissed a writ petition which was filed aggrieved by the order of the Rent Tribunal which had dismissed an application filed by the petitioner/non-applicant/tenant under Order 7 Rule 11 CPC.

The respondent-applicant had filed an Original Application under Section 18 of the Rajasthan Rent Control Act, 2001 stating therein that the petitioner was the tenant in his flat under a rent agreement. Alleging default in the payment of rent, his eviction was sought by the respondent. The petitioner-tenant had filed the application under Order 7 Rule 11 CPC which had been dismissed by the Rent Tribunal.

The Counsel for the petitioner, Yogesh Chandra Joshi, contended that the rent agreement does not reveal that the petitioner was tenant in Flat No. 606 but simply read “TWO ROOM SET on 6th FLOOR, OUT OF SOCIETY” in the layout plan of Vaidant Height, Nand Puri-B, Near Mahima Group Apartment, Guru Circle, Pratap Nagar, Sanganer, Jaipur. He further submitted that while dismissing the application, the Rent Tribunal did not appreciate signatures of the first party; second party and witness 2 were obtained later on as the signatures followed mark ‘X’.

The Court while dismissing the writ petition affirmed the order of the Rent Tribunal and explained that Flat No.606 was specifically mentioned in the eviction application under tenancy of the petitioner which, as per the order impugned, was not been disputed even by the petitioner, further the effect of the absence of flat number in the rent agreement was to be examined by the Rent Tribunal, in case any such objection existed in the reply filed by the petitioner and the counsel for petitioner failed to point out any averment or omission in the eviction application which might invite application of the provisions of Order 7 Rule 11 CPC. The Court further stated that the application filed by the petitioner under Order 7 Rule 11 CPC does not reveal any reason for filing it at such belated stage when the case was fixed for the final arguments which indicated malafide intention to delay the disposal of the eviction application. [Anil Joshi v. Beejal Chopra, 2020 SCC OnLine Raj 1256, decided on 24-08-2020]


*Suchita Shukla, Editorial Assistant has put this story together

Op EdsOP. ED.

This article concerns with a recurrent issue that arises from an ever-widening relationship of landlord-tenant. There can be no hesitation mentioning that almost all the societies have witnessed conflicts when it comes to determination of tenancy and thus, regulate the same. In India, Part V of the Transfer of Property Act, 1882, (hereinafter referred to as “the Act” or “TPA”) governs such a relationship entered into through a lease. A perplexing question that needs discussion here pertains to procedural requirement of “giving a notice” under Sections 106 and 111(g) of the Act, by the landlord, of his intention to determine the jural relationship of tenancy before filing a suit for eviction under the various State Rent Acts. The issue within this is not regarding what amounts to “giving of a notice” or whether a notice given in a certain way fulfils all requirements to be a valid notice. The controversy centres on whether such a notice is at all necessary to be given. The major takeaway for the readers would be knowledge of confined situations where notice is required to be served by the landlord and consequently, would reduce the confusion regarding the same. Before moving on to the question on hand it becomes pertinent to shed some light on the concept and scope of the aforesaid provisions.

Ordinarily, a contract between the parties would regulate all the relevant terms including the duration of the subsistence of tenancy, however, there might be a case where the contract mentions no date of termination of such relation. On a plain reading of Section 106, it is clear that the legislature has classified the leases into two categories and according to their purposes this provision would be attracted to construe the duration of the lease and accordingly duration of notice to be served in absence of a contract or local usage to the contrary[1]. This implies that this section is applicable only in the absence of contract as to the duration of lease. Also, it is open to the parties to contract themselves out of the provision and to make a valid contract between themselves as regards duration of their lease and the manner of termination of the same. It is obvious that the lease of tenancy, mostly, if not always, would be covered by the mandate of giving 15 days’ notice to the tenant. Even the length of the notice or the calendar for computation of the period can be subject to contract between the parties[2].

The other indispensable requirement of giving notice is rooted under Section 111(g) of the Act. The sub-section deals with the subject known as forfeiture of leases. Forfeiture ordinarily implies a penalty for an offence or unlawful act or for some wilful omission of a tenant of property whereby he loses it, together with his title, which devolves upon others[3]. To constitute forfeiture in a matter, there must be a breach of an express condition of the lease which provides for the landlord’s re-entry to the premises.

The question that stares us at this stage is whether both the notices under the impugned sections technically are identical to each other. To start with, a bare reading of Section 111(g) shows that it is nowhere mentioned as to the nature and time period of the notice that needs to be given is identical to that of Section 106. Clearly, Section 106 of the Act was incorporated as an equitable provision so that a tenant may not be taken by surprise. The rationale behind such a mandate could be intimating the intention of landlord so that the tenant could arrange for himself another roof. It seems to be in the interests of hapless tenants who are without just cause thrown out of the premises at the mercy of the landlord. On the other hand, the latter’s purpose apparently is not the one as of the former and is not based on the principles of justice, equity or good conscience[4]. It cannot be said to be guided by reason and equity as the tenant after liability has been incurred cannot be given benefit of his own wrong. Therefore, notice under the latter sub-section is not the one to be given under Section 106 of the Act. However, at most, it can be said that the similarities that can be drawn in both the notices are with respect to the procedural formalities but not the technical ones.

This brings us to the real question of this article as to whether the “giving of notice” as contemplated by the Act is a prerequisite condition that needs to be adhered to prior to filing of a suit of eviction against tenant under the State Rent Acts.

Here, it becomes imperative to appreciate the fact that the State List[5] of the Constitution of India prescribes the State Governments to regulate rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents. Resultantly, almost all the States have enacted their law governing determination of tenancy. The controversy now is limited to whether the provisions of the relevant State Rent Act was in addition to the provision of the TPA or was in derogation thereof. In other words, whether it would supplement or supplant the same. The Rent Acts  passed in different States were intended to prevent indiscriminate eviction of tenants and were intended to be a protective statute to safeguard the security of possession of the tenants and therefore, should be construed in the light of it being a social legislation[6].

As far as the answer to the present question is concerned it can be said that there were mixed and inconsistent views iterated by the Supreme Court and various High Courts in catena of judgments. A few of the judgments deserves to be highlighted herein. The Supreme Court in Manujendra Dutt v. Purendu Prosad Roy Chowdhury[7], while deciding requirement of notice in both the sections to be sine qua non before filing suit for eviction under the State rent provisions, has remarked that:

5. … Rent Acts are not ordinarily intended to interfere with contractual leases and are Acts for the protection of tenants and are consequently restrictive and not enabling, conferring no new rights of action but restricting the existing rights either under the contract or under the general law.

In addition to the above case, the Supreme Court while referring to its judgment in Namdeo Lokman Lodhi v. Narmadabai[8], has held that giving notice under Section 106 is a principle of equity and hence mandatory but laid down contrary with respect to Section 111(g). It observed that:

26. … The irrelevance of the English Law as such to notions of good conscience in India notwithstanding, we agree that a written notice is no part of equity. The essential principles, not the technical rules, of the TP Act form part of justice, equity and good conscience. The conclusion emerges that the landlord’s termination of the tenancy in this case is good even without a written notice.[9]

Either of the above view was adopted by the Supreme Court of India in many more pronouncements until the landmark judgment[10] by a seven-Judge Bench of the Court. The ruling marked the end of all the chaos and confusing and thus overruled all the previous conflicting views. Moreover, it emphasised the need to have a uniform law in all the States despite having some difference in phraseology of relevant provisions in the State laws.

The Court pointed out with no hesitation that notice under both the sections is different kind of intimation. As far as Section 106 is concerned it brushed aside the previous position of law and stated that when under the various State Rent Acts, either in one language or the other, it has been provided that a tenant can be evicted on the grounds mentioned in certain sections of the said Acts, then how does the question of determination of a tenancy by notice arise? If the State Rent Act requires the giving of a particular type of notice in order to get a particular kind of relief, such a notice will have to be given. It further observed that:

11. … It is true that the Rent Act is intended to restrict the rights which the landlord possessed either for charging excessive rents or for evicting tenants. But if within the ambit of those restricted rights he makes out his case it is a mere empty formality to ask him to determine the contractual tenancy before institution of a suit for eviction[11].

Thus, the action of the landlord in instituting a suit for eviction on the ground mentioned in any State Rent Act will tantamount to an expression of his intention that he does not want the tenant to continue as his lessee and the legal relationship of lessor and lessee will come to an end on the passing of an order or a decree for eviction. Until then, under the extended definition of the word “tenant” under the various State Rent Acts, the tenant continues to be a tenant even though the contractual tenancy has been determined by giving of a valid notice under Section 106 of the TPA.

On the other hand, the Court while considering the requirement under Section 111(g) obliterated the difference between “contractual tenantandstatutory tenant. It observed that where any tenant has violated any term of the contract and the landlord having served the notice determines the contractual lease under Section 111(g) of the Act, nevertheless, he would be provided with the protection under various State Acts as statutory tenant and can only be evicted after obtaining an order or decree to that effect. Stating it in words of the Bench:

16. … Why this dual requirement? Even if the lease is determined by forfeiture under the Transfer of Property Act the tenant continues to be a tenant, that is to say, there is no forfeiture in the eye of the law. The tenant becomes liable to be evicted and forfeiture comes into play only if he has incurred the liability to be evicted under the State Rent Act, not otherwise. In many State statutes different provisions have been made as to the grounds on which a tenant can be evicted and in relation to his incurring the liability to be so evicted. Some provisions overlap those of the Transfer of Property Act. Some are new which are mostly in favour of the tenants but some are in favour of the landlord also.[12]

Therefore, it can be aptly concluded that determination of a lease in accordance with the TPA is unnecessary and a mere surplusage because the landlord cannot get eviction of the tenant even after such determination. The tenant continues to be so even thereafter.

Thereafter, this position of law has been followed in a plethora of judgments by the Supreme Court. In Shakuntala S. Tiwari v. Hem Chand M. Singhania[13], the Court held that it is an act in law and not an act of law because under the scheme a determination of tenancy which takes place under the TPA, according to the appellant, is wholly irrelevant for founding a cause of action in ejectment because the provisions of the TPA are superseded by the provisions of the Rent Act. Interestingly, the Court has broadened its sweep to the extent saying that Section 111(g) in such situations be treated as inoperative and deemed to be repealed[14].

Conclusion

On a careful consideration of all the material referred to, it can be aptly remarked that requirement of giving a notice to the tenant under Sections 106 and 111(g) in a case of filing an eviction petition under the respective State rent legislations is not based on rule of equity and reason. Hence, it is an additional technical formality, absence of which ensue no legal consequences and cannot be insisted upon the landlord. But does that mean that the impugned provisions have no role to play in shaping the rent control jurisprudence? The answer cannot be in affirmative. The two provisions would still operate in a larger field of regulating other leases of immovable property other than tenancy. Also, it cannot be said that both of them are in nullity when we talk about regulation of landlord-tenant relationship. The judgment of the Supreme Court in Nopany Investments (P) Ltd. v. Santokh Singh (HUF)[15] can be interpreted to the extent that giving a notice under Section 106 of the Act is not a requirement even when filing a suit in general law. However this does not seem to be the correct proposition of law laid down in Yesodai Ammal case[16] as these provisions of the Act would apply in absence of Rent Act in the State concerned and where the landlord presses a ground which does not find mention in the State Act but in general law[17]. In furtherance to this, there can be another situation which is a necessary corollary to the intent of State Legislatures i.e. where the State rent law itself expressly or by necessary implication entails to give a notice in accordance with the terms of Section 106.

Ergo, the requirement of giving a notice can be summed up in the following categories as noted hereinbelow:

  1. Where the rent agreement speaks for giving notice in a manner which is not inconsistent with the statute in force of that State or the general law (in case no State Act exists) as the case maybe, then that specific clause of the agreement shall prevail.
  2. Where no clause for giving notice is provided in the agreement or if provided is inconsistent with the State law or Central law (in case of absence of State law), then:

(a) Where that particular State has not enacted its rent statute, then the terms provided under TPA shall apply and would become a mandate.

(b) Where a particular State has enacted its rent statute but does not provide any provision regarding giving of notice, then no notice need to be served before filing a petition for eviction and tenancy shall only be terminated once a decree is granted by the proper rent court.

(c) Where the State rent statute itself expressly or by necessary implication entails to give a notice in accordance with the terms of Section 106 of TPA.

(d) Where the landlord presses a ground which does not find mention in the relevant State Rent Act in a particular State of India but in TPA, then terms of TPA shall be complied with.


*Final Year Student of BA LLB (Hons.), University School of Law & Legal Studies, GGSIPU.

[1] Samir Mukherjee v. Davinder K. Bajaj, (2001) 5 SCC 259 

[2] Harbhajan Singh v. P.N. Chopra, 1976 SCC OnLine Del 174

[3] Wharton’s Law Lexicon, see also Sunil Kumar Modi v. Munna Lal Gupta, 2007 SCC OnLine All 899

[4] Rattan Lal v. Vardesh Chander, (1976) 2 SCC 103; see also, Namdeo Lokman Lodhi v. Narmadabai,  1953 SCR 1009

[5] Sch. VII, List II, Entry 18,  Constitution of India

[6] Manujendra Dutt v. Purendu Prosad Roy Chowdhury, (1967) 1 SCR 475

[7] Ibid

[8] 1953 SCR 1009

[9] Rattan Lal v. Vardesh Chander, (1976) 2 SCC 103, 117

[10] V. Dhanapal Chettiar v. Yesodai Ammal, (1979) 4 SCC 214

[11] Id. at p. 22

[12] V. Dhanapal Chettiar v. Yesodai Ammal, (1979) 4 SCC 214, at p. 227

[13] (1987) 3 SCC 211

[14] Palani Ammal v. Viswanatha Chettiar, (1998) 3 SCC 654

[15] (2008) 2 SCC 728

[16] (1979) 4 SCC 214

[17] Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of UU Lalit, Indu Malhotra and AS Bopanna, JJ has held that an agriculturist cannot part with his agricultural land to a non-agriculturist though a ‘Will’ as per Sections 43 and 63 of the Bombay Tenancy and Agricultural Lands, Act, 1948 (the Tenancy Act).

Section 43 lays down the restrictions on transfer of land sold or purchased under the Tenancy Act and Section 63 bars the transfer of agricultural lands to non-agriculturists.

The Court said,

“if it is held that the testamentary disposition would not get covered by the provisions of Section 43, a gullible person can be made to execute a testament in favour of a person who may not fulfil the requirements and be eligible to be a transferee in accordance with law. This may not only render the natural heirs of the tenant without any support or sustenance but may also have serious impact on agricultural operations.”

Explaining the scheme of the Act and the provisions in question, the Court said that the primary concern of provisions referred to in Section 43 of the Tenancy Act is to see that the legislative scheme of granting protection to persons from disadvantaged categories and conferring the right of purchase upon them, and thereby ensure direct relationship of a tiller with the land.

If a tenant or any other person from the priority list is conferred ownership in respect of the agricultural land or when a landlord is allowed to retain the land which was surrendered by his tenant, each one of them is obliged to cultivate the land personally. In case any of them is unwilling, the land must be given to those who principally depend upon agricultural operations for their sustenance. If a person is a beneficiary of such statutory purchase and wishes to transfer his holding the law obliges that he must take prior sanction from the Collector.

The Court, further,explained that a transfer inter vivos would normally be for consideration where the transferor may get value for the land but the legislation requires previous sanction of the concerned authority so that the transferee can step into the shoes of the transferor, and carry out all the obligations as a part of legislative scheme must be discharged. Thus, the screening whether a transferee is eligible or not, can be undertaken even before the actual transfer is effected. Hence,

“if a testamentary disposition which does not have the element of consideration is to be permitted, and if it is assumed that Sections 43 and 63 of the Act do not get attracted, the land can be bequeathed to a total stranger and a non-agriculturist who may not cultivate the land himself; which in turn may then lead to engagement of somebody as a tenant on the land. The legislative intent to do away with absentee landlordism and to protect the cultivating tenants, and to establish direct relationship between the cultivator and the land would then be rendered otiose.”

The Court concluded by saying that the provisions, though lay down a norm which may not be fully consistent with the principles of Indian Succession Act, are principally designed to attain and sub-serve the purpose of protecting the holdings in the hands of disadvantaged categories. The prohibition against transfers of holding without the previous sanction of the concerned authorities, is to be seen in that light as furthering the cause of legislation.

[Vinodchandra Sakarlal Kapadia v. State of Gujarat, 2020 SCC OnLine SC 545 , decided on 15.06.2020]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J., allowed a petition that challenged the impugned order whereby petitioner’s application under Order 12 Rule 6 CPC for judgment on admissions was rejected.

The petitioner (landlord) had filed a suit for possession of the suit property which was owned by her. She had prayed for ejectment of the tenant-respondents. The petitioner moved an application under Order 12 Rule 6 CPC which was rejected by the trial court on the sole ground that the tenant did not make any admission as to the ownership of the petitioner and their tenancy in the suit property.

On facts, the High Court held that the trial court erred in reaching the said conclusion, as in the written statement filed by the tenant, there was a clear admission that they were tenants under the petitioner, and the petitioner was the owner of the suit property. Even the receipt of legal notice served by the petitioner for ejecting the tenants was admitted.

On the point of law, the Court noted that in a suit for ejectment, the landlord has to establish: (i) Relationship of landlord and tenant; (ii) Tenancy is not a protected tenancy under the Delhi Rent Control Act, 1958; (iii) There is no registered subsisting lease agreement; (iv) Tenancy has been terminated and the respondent tenant has failed to hand over possession.

The Court was of the opinion that since, there was an unequivocal admission of the ingredients that the landlord has to establish for seeking ejectment of its tenant, the application filed by the petitioner under Order 12 Rule 6 CPC ought to be allowed. Orders were made accordingly. [Geeta v. Mohd. Raza, 2019 SCC OnLine Del 11385, decided on 14-11-2019]

Case BriefsSupreme Court

Supreme Court: Overruling the verdict in Appa Narsappa Magdum [Appa Narsappa Magdum v. Akubai Ganapati Nimbalkar, (1999) 4 SCC 443, the 3-judge bench of RF Nariman, R. Subhash Reddy and Surya Kant, JJ has held that the judgment does not square with object sought to be achieved by the 1956 Amendment to the Maharashtra Tenancy and Agricultural Lands Act, 1948 or to the declaration of law in this judgment, it does not state the law correctly.

In Appa Narsappa Case, the division bench had held that the period of one year will have to be counted in accordance with the Sections 32-F and 31 of the 1948 Act and not from the date of the knowledge of the tenant. Under Section 32-F, tenant has right to purchase where landlord was minor or a widow or a person subject to mental or physical disability within one year from the expiry of the period during which such landlord is entitled to terminate the tenancy under Section 31. Amendment in Section 32-F(1)(a) added by Act 49 of 1969 expressly covered a case of landlord who was minor and has attained majority. Intimation by a minor landlord who has attained majority has been made a statutory obligation of the landlord so that tenant may exercise his right of purchase. The other two categories which are a widow or a person subject to mental or physical disability have not been expressly included in the amendment incorporated by Act 49 of 1969.

The Court, hence, noticed that the classification made in favour of tenants of minor landlords as opposed to tenants of landlords of the other two categories is a classification which is arbitrary in nature. This being the case, such classification would ordinarily have to be struck down as being violative of Article 14 of the Constitution of India. It, hence, held,

“instead of striking down such classification as a whole, what can be done is to strike down the words “..of the fact that he has attained majority..”, as a result of which, what is added by the 1969 Amendment to Section 32-F(1)(a) now ceases to be discriminatory, as it is applicable to tenants of all three categories of landlords.”

Hence, the object of the Amendment Act of 1969 is relevant and applicable in deciding the scope of the right to purchase by a tenant of a landlord who was a widow or suffering from mental or physical disability on Tillers’ day.

The Court, further, noticed that an absurd situation would be created by a literal reading of Section 32-F(1)(a). The landlord being a widow is protected until her death. After her death, one year is given to her successors in interest to exercise the right of resumption. When this does not take place one year is granted from the expiry of this first one year to the tenant to exercise his statutory right. This cannot be done because the tenant does not know of the death of the widow. As a result, this very land which was not required by the landlord’s successors in interest for personal cultivation, goes back to the landlord under Section 32-P in cases in which the landlord either has no land within the ceiling limit or some land which does not exhaust the ceiling limit. This anomaly indeed turns the entire scheme of agrarian reform on its head. The Court, hence, held that the successor-in-interest of a widow is obliged to send an intimation to the tenant of cessation of interest of the widow to enable the tenant to exercise his right of purchase.

[Vasant Ganpat Padave v. Anant Mahadev Sawant, 2019 SCC OnLine SC 1226, decided on 18.09.2019]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J., allowed a petition filed by the allottee of the subject shop who was charged with an offence punishable under Section 447 (punishment for criminal trespass) IPC, and quashed the order whereby the charge was farmed against him.

The petitioner was the allottee of the subject shop. It was alleged by the respondent that the petitioner had agreed to rent out the shop to him and had demanded a sum of Rs 50,000 to be paid in advance, after the payment of which the petitioner handed over the keys to him. The respondent, in his complaint filed under Section 200 CrPC, alleged that the petitioner, however, did not remove his articles from the shop with malafide intentions. And on 27-02-2011, while the complainant was getting the woodwork done, the petitioner broke the lock and trespassed into the shop.

Aditya Madan, Advocate for the petitioner contended that the trial court erred in framing the charge and not appreciating there was the allottee of and in possession of the shop. Per contra, Subodh Kumar Pathak, Advocate for the respondent supported the impugned order.

The High Court noted that admittedly, the petitioner was the allottee of the shop. The respondent did not produce any evidence to corroborate that any tenancy was created in his favour or the possession was handed over to him. It was observed: Section 447 is punishment for Criminal Trespass which is defined under Section 441 to be committed when a person enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property. The impugned order clearly is erroneous in as much as the Trial Court has framed the charge on the presumption that the complainant was in possession of the shop at that time. As there is no material to show that possession was parted with by the petitioner or handed over to the complainant, petitioner could not have been charged with the offence under Section 447 IPC.”

In such view of the matter, the petition was allowed and the charge framed against the petitioner was quashed. [Jagdish Kapila v. Raj Kumar, 2019 SCC OnLine Del 8617, decided on 21-05-2019]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of A.M. Dhavale, J. dismissed a second appeal filed against the order made in first appeal wherein it was held that the plaintiffs were not entitled to claim damages for wrongful possession of rented premises by the defendant.

The plaintiffs were owners of the subject property which was let out to Nizam Government which handed it over to Zila Parishad. In the year 1990, Zila Parishad terminated its own tenancy and directed its officials yo handover the possession of the property to plaintiffs. However, this direction was not complied with. It was also an admitted fact that plaintiffs did not take any step to recover the possession of the property and were now directly before the Court claim damages for wrongful possession by Zila Parishad.

Question before the Court was “Whether the landlord would be entitled for damages after termination of tenancy if he does not take any step for recovery of possession for more than 12 years after termination?”

The High Court referred to Chander Kali Bai v. Jagdish Singh Thakur, (1977) 4 SCC 402 wherein it was observed, “if a tenant continues in possession after termination of contractual tenancy, he would not be liable for damages till the decree for eviction is passed.” In the instant case, no decree for eviction was passed. The tenant Zila Parishad itself terminated the tenancy. In such case, the landlord plaintiffs were bound to file suit for possession. He could not directly file suit for damages for the amount not agreed under the contract. Furthermore, damages by way of mesne profits can be awarded under Order 20 Rule 12 only from the date of decree for possession for the period for which the possession is wrongfully retained in spite of the decree. In such view of the matter, the second appeal was dismissed. [Arvind v. State, 2018 SCC OnLine Bom 6069decided on 10-12-2018]

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: A Single Judge Bench of Rajesh Kumar, J., dismissed a second appeal filed against the order of the trial court whereby a decree of eviction was passed against the appellants.

The respondents (landlords) had filed a suit for eviction against the appellants (tenants) because of personal reasons and also on account of non-payment of rent since November, 2012. The appellants contended that the landlord-tenant relationship between the parties came to an end after an agreement for sale was entered between the appellants and the father of the landlords.

The main question that arose before the Court was whether the trial court was justified in passing a decree of eviction against the appellants.

The Court observed that as per a conjoint reading of Section 53-A of the Transfer of Property Act and Section 17(1-A) of the Registration Act, it becomes clear that in order to protect possession over the land in dispute, the first compulsory requirement is that the agreement of sale must be registered. In this case, the agreement was not registered. Further, it was observed that as per Section 116 of the Indian Evidence Act, if the tenancy has been accepted then the tenant has no right to challenge the status of the landlord on any ground whatsoever.

The Court held that the appellant’s contention about the non-existence of landlord-tenant relationship between the parties is untenable. The Court upheld the order of the trial court as well as the first appellate court. [Devanand v. Sudhir Kumar Sharma,2018 SCC OnLine Jhar 1257, Order dated 12-09-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Valmiki Mehta, J. dismissed an appeal filed under Section 96 of CPC  against the judgment of the trial court whereby appellant’s suit for possession and mesne profits was dismissed.

The suit was dismissed by the trial court holding that the appellant being only one of the co-owners, could not claim possession in absence of support from other co-owners. It was held that a  single landlord could not terminate the tenancy. Aggrieved thus, the appellant preferred the instant appeal.

The High Court relied on Sk. Sattar Sk. Mohd. Choudhari v. Gundappa Amabadas Bukate, (1996) 6 SCC 373 and Jagdish Dutt v. Dharam Pal, (1999) 3 SCC 644 to hold that one co-owner/co-landlord is not entitled on his own, in the face of opposition from other co-owners/co-landlords, to terminate the tenancy for seeking possession of the tenanted property and/or mesne profits. In the present case, the other co-owners had infact opposed the termination of tenancy as well as the suit filed by the appellant. Observing that the appeal was completely frivolous, the High Court held that the suit was rightly dismissed by the trial court. Therefore, the appeal was dismissed. [Navin Chander Anand v. Union Bank of India,2018 SCC OnLine Del 9902, 17-07-2018]

Case BriefsSupreme Court

Supreme Court: Explaining the rule of inference in matters relating to sub-tenancy or sub-letting, the bench RK Agrawal and Ashok Bhushan, JJ held that considering the fact that the process of sub-letting, the landlord is kept out of the scene and that the payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the facts of the case.

The Bench explained that sub-tenancy or sub-letting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof and that this arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered.

The Court noticed that sub-letting arrangement is made at the back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person in possession of that property. It was further noticed that the payment of rent, undoubtedly, is an essential element of lease or sub-lease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump sum in advance covering the period for which the premises is let out or sub-let or it may have been paid or promised to be paid periodically.

Hence, the Court held that in such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the sub-tenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sub-let had paid monetary consideration to the tenant. It was further explained that the initial burden to prove that the sub-tenant is in exclusive possession of the property is on the owner, however, the onus to prove the exclusive possession of the sub tenant is that of preponderance of probability only and he has to prove the same prima facie only and if he succeeds then the burden to rebut the same lies on the tenant. If the tenant is unable to discharge that onus, it is permissible for the court to raise an inference that such possession was for monetary consideration. [Prem Prakash v. Santosh Kumar Jain & sons, 2017 SCC OnLine SC 1018 , decided on 30.08.2017]

Case BriefsSupreme Court

Supreme Court: In a matter relating to eviction of the tenant, the bench of J. Chelameswar and Abhay Manohar Sapre, JJ held that any female, if she is having a legal right of residence in the building, is entitled to seek eviction of the tenant from such building for her need.

In the case the landlady of a shop had asked the tenant to vacate the property on account that her daughter, who had a clinic adjacent to the concerned shop, wanted to expand her clinic as the area of the existing shop was inadequate to run a clinic. The Tenant, however, contended that the need of the appellant was not bona-fide as the appellant’s daughter was not a member of family as defined under Section 3(g) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 because she is a married daughter whereas Section 3(g)(iii) include only an “unmarried daughter”. The Allahabad High Court had overturned the ruling of the Prescribed Authority/Civil Judge and the first appellate court and had held that the daughter was not a family member under the Act.

The Court, rejected the said contention of the tenant and held that the inclusive part of the definition under Section 3(g) of the Act, which is enacted only for the benefit of “female” in relation to the landlord, adds one more category of person in addition to those specified in clauses (i) to (iii), namely, “any female having a legal right of residence in that building”. In other words, in order to claim the benefit of expression “family”, a female must have a “legal right of residence” in the building.

Considering the fact that appellant’s husband, the original owner of the property in question, died intestate and on his death, the appellant, two sons and four daughters inherited the estate left by Dr. Ahsan Ahmad, which included the building, the Court said that the appellant’s daughter was a family member under the Act and hence, the appellant’s need was bona-fide. [Gulshera Khanam v. Aftab Ahmad, 2016 SCC OnLine SC 1001, decided on 27.09.2016]