Scribd Logo
Upload

Welcome to Scribd!

  • Delhi Rent Control Act

    Uploaded by

    shoaib
    21 views47 pages

    Copyright

    © © All Rights Reserved

    Available Formats

    PDF or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    Report this Document

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    21 views47 pages

    Delhi Rent Control Act

    Uploaded by

    shoaib

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    of 47
    6 TATY poarding house must have been for a Pe hotel. Letting out rooms to a money lender for storin, 40510 nexus with that business and are not excluded.! only aroom in a hotel is excluded but not the hotel , §, 2(l)—Tenant, Previous history of the definition — i ie Merwara Rent Control Act (19 of 1947) defined tenane x = son Who took on rent any premises for his Own occupation, or for ie occupation of any person dependent on him, but did not include a Collector of rents or any middleman who took or had taken view to subletting them to other persons. The def was substantially the same as here. It would tenant was vague particularly when the expression ‘on rent’ was not defined in the Act. Again the definition was confined to Premises taken on rent for the tenant's own occupation or for the occu; pation of any person dependent on | him. Of course, the purpose of occupation might have been residential or commercial but the definition itself excluded any question of assignment of the lease or subletting the whole or a portion of the premises. This definition was also to be read in the light of S. 9(1) which laid down that ‘notwithstanding’ anything in any contract, no Court shall pass any decree in favour of a landlord or make any order in favour of a landlord whether in execution of a decree or otherwise, evicting any tenant, whether or not the contract of tenancy had been terminated, unless it is satisfied...” Reading the two provisions together it was reasonably clear that the ©pression ‘tenant’, though not so expressly stated in the definition, was in the context of S. 9 intended to include a tenant whose tenancy had been teminated. S. 9(1) was also intended to affect orders and decrees which had passed for ejectment of the tenant before the commencement of the Act Under 8eneral law on the expiry of the period of lease or on its termination by Service of notice to quit or occurrence of an act of forfeiture. Such person to be a tenant and became what is called in English law a tenant by *uferance whose status is analogous to that of a trespasser. S. 9(1) therefore Made it clear that a person against whom a decree for eviction had already ten Passed before the commencement of the Act but who was still mn reeesion On its commencement, was entitled to protection as a tenant. A ton Who had been dispossessed or had surrendered possession ot erwise bviog €xecution of a decree could not have the benefit of the section. ‘ously s. fy f a decree passed after the Commer’: 91) did not apply to the case o! eg eras Show thaement of the Act in accordance with its provisions. ot the same & it oat the definition in the Act, though in general terms, we rely aa "ease Under the Transfer of Property Act or general law, Hie eriod of the ~ ta tenant remained a tenant whether or not the p' | building itself2 Aj inition of landlord in that Act be seen that the definition of lah LJ 505: 1974 RCJ 446. 1 Sy init » Shrin 1s Subyya Alwa v. Krishnavani Vasudev Mudaliar, 1974 Mi a eay som. 1974 RC) Manghas SHbyya Alwa v. Krishnavani Vasudev Mudaliar, 1974 "Mal v. Khushal Das, 128 IC 635: AIR 1947 Sind 27. “ [Sec.2 0 Law of Rent Control in Delhi i itself was again quite vague ty emi a tnacy rite ory eee a notice to quit were covered. On this interpretation only tenancies ea a specified period would be affected. How placed on the expression and all cases of ex remain on the premises inspite of the termin entitled to protection The pen of ‘tenant’ in Act 38,of 1952 which repealed the previous one was as under: “Tenant means any person by whom or on whose account rent is payable for any premises and includes sub-tenants and other persons as have derived title under a tenant under the provisions of any law before the commencement of this Act.” The definition of panglond” n.S.2ia was almost the same as in the present Act. S. 13(1) ran as under: “Notwithstanding anything to the contrary contained in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any court in favour of the landlord against any tenant including a tenant whose tenancy is terminated.” Thus tenants staying on the premises after the termination of their tenancy f inst eviction. The provisions of the Act were to Prevail notwithstanding anything to the contra ever, a larger interpretation was -tenants who had continued to ation of their lease were held 2) Preliminan see y at 00d to be the law under-the ition of the expression, but ction against eviction. The des a person against ion has been made. ‘Against whom any order or decree for Reading it with S. 14, itis clear that the decree or order referred to assed under the Act. The present Act substitutes a new machiner' Th e Rent Controller passes orders and the jurisdiction of the civil Court ina aa Pa away. SO reference to the expression ‘decree’ does not appear to have much ' meaning. 1) was substituted for the old one by S. 2(2) of the Delhi | (Amendment) Act, , i the date ement of the principal Act. ” The common points and differences in the old and the substituted definition may be noted. Under both old and new definition the following persons are tenants, namely (1) Any person by whom or on whose account or behalf the rent is payable; (2) a sub-tenant; (3) any person continuing in possession after the termination of his tenancy. Any person against whom an order or decree for evicti is been made to be a tenant from that time onwards. It is | expl led now that any person to whom a licence, as defined by S. 52 of the Indian Easements Act, 1882 has been granted is not a tenant. Under the licensee is not a tenant. The distinction between a and licensee has been recognised in the law since long. The reference to S.52 of the Indian Easement Act does not seem to make any difference as that definition does not go beyond or falls short of what has been hitherto understood. The only material change appears to be the addition of clause (iii) and Explanations I and Il. The law had always been understood to be that av statutory tenancy came to an end with tenant’s death. The added provisions Provide for transmission of such tenancy on certain relations under certain , conditions. The provision is confined to those _tenants only who have continued to remain in possession after the termination of the contractual tenancy as tenants. The English provision considered later was held to apply toa Sega tenancy also.! In respect of analogous provisions in certain oe < considered later on, it might be said that they apply also to one wits Wa" contractual tenant at the time of his death. But the limited scope of clause (iii) 's made clear by the opening words ‘In the even Continuing in possession after the termination of his tenancy’. eee though ow the view has been taken that a statutory tenancy is heritable, ie Act as now amended, appears to rest on the principle that Paaad and therefore mode of its devolution has been provided under e a976 . President — Though the amending Act received the assent of the esi ae jetiniton of } and was published in the Gazette of India, the Act, except 2d was publish 1. Moodie v. Hosegood, 1952 AC (61): 1951 (2) AER 582 HL. ae & L of Rent Control 1 Dem aw m 1-12-1975 on which date the amendment of S. 2(1) has, of commencement of the 92 e with effect fron issued. The -| was issued +h became the Act ie Le le retrospective from the da’ ectiv tenant, is made retrospect! Ordinance W! however, been mad: principal Act 41, S. 2(I)—Tenant m half the rent of any pre pave _The definition of the expr’ on by whom or on whose account or F t, mises is, or, but fora special contrac! would be, ession ‘tenant’ in the Act is exhaustive. It ~ s the second part is ‘1 is the general part whereas U Pi The first Rae vat certain persons are excluded from the i that the Act may apply there must exist the Scope ots ae port between two persons in relation to any atone ia ied by the Act. The general law is that a person cannot Dara ease Rs 'P Jf and it is submitted that principle applies here. Whether any person is a tenant or not for the purposes of the Act is an important jurisdictional fact as a finding thereon shall determine whether the Controller can exercise jurisdiction in relation to him or not. The opening general part of the definition means that any person who is bound in law to pay rent of any premises is a tenant under the Act. The emphasis is on the liability or the obligation to pay rent. It is irrelevant who makes the payment of rent. The mere payment of rent cannot without more | bring into existence the relationship of landlord and tenant.! There must be some agreement or contract between the parties from which such relationship can arise. Conversely where such relationship is established by contract the mere non-payment of rent since the inception of tenancy does not negative the same.’ A tenancy created by a Court receiver in violation of injunction order is invalid and such tenant is not protected by the Rent Act? Privy Council, while interpretin, i i i i includes an ext eae salts ng an identical expression, held that it application for fixing standard ‘In Bory Ee aA rent.4 In Panvati Bai Namdeo v. Jagan Nath5 the eans any pers payable. is in three parts. inclusive in character. By the where the Pent ie cat n does not mean that he is a tenant. Thus iiecnaiN Ae id ship fea netship funds but the initial letting was to an number of years i Se Peeome the tenant.’ y only two Teceipts were in favour of the fin and ener 1. HS. Rikhy v N.D.M.C, AIR 1962 SC 554 2. Ude Ram v. Tej Karan, 1975 RCR 272. 3. Krishna Kumar Khem) 5, 4. Kamani Industrial Bank | 5. 59 Bom LR 1029 6. Trilok Singh v. Ram Prasad, 197) (22) 1982 DLT 389, Khushbir RC} 420; Inder Sain Gupta vy. s, | Singh v. Ajay ‘pla v. Sushil Kumar, 1982 (2) RCJ 607: 1982(2) RC] 251 d Os, (21) 1982 DLT 32g igh, AIR 1983 (NOC) 76 Del. 1982 (2) RR 30: td. v. S ¥: Satya Niranjan Shaw, AIR 1928 PC 227 Sec. 2] Preliminary 93 name of an individual the firm was held not to be the tenant.) In Om Parkash v. ‘a? it was held that Om Parkash being the person liable to pay rent was the tenant and though he was entitled to use the premises for / the benefit of joint family, the family members did not become tenants. , Similarly where the shop was taken on rent by an individual but the joint family business was carried on therein and rent was paid by the brother, the joint family or the brother did not become tenants. The rent would be deemed to have been paid on behalf of the tenant. The tenant husband started living in a lodge during the pendency of eviction proceedings. While the appeal arising from such proceedings was pending in the High Court, ihe marriage between the tenant and his wife was dissolved by decree based on mutual consent. The husband having left the premises did not contest the same. It was held that the divorced wife did not have any right to contes: the claim for eviction. 32. S. 2() (i)—Tenant includes a sub-tenant.—Several questions arise for consideration in this connection. Where the tenant has inducted a sub-tenant without the consent in writing of the landlord, it is a ground for his eviction under S. 14(1)(b). The fact that the definition expressly includes a sub-tenant indicates that the creation of a sub-tenancy by itself is not illegal. This aspect has been dealt with in commentary under S. 16. Under S. 14(1)(d) a tenant can be evicted if he vacates the premises for six months. It was argued that even if sub-tenant is in possession, it would mean that the tenant is also in possession, since tenant includes a sub-tenant, and hence Cl. (d) can not be invoked. the submission holding that sub-tenant is included wi ion of tenant for a purpose, for conferment of rights and obligations on such sub-tenant wherever the statute requires under various provisions of the Act, of that which is re However, it can not apply where the Act itself treats both as separate entities as in S. 14(1)(b) and $s. 16, 17 and 18. Otherwise these provisions would be rendered meaningless. Therefore, in such provisions which specifically deal with inter se relationship between a tenant and a sub- tenant, the two can not be equitated with one another.> Even where the sub-tenancy was created with the consent in writing of the landlord, the ground under S. 14(1) (b) may not be available to him but if the landlord obtains an order of eviction against the tenant, the sub-tenant must go out with him on the general principle that no person can confer on another rights larger than he himself has in the property. However, in spite of an order of eviction against the tenant, such a lawful sub-tenant can claim to have become a tenant under the landlord S. 18, provided there has been compliance with S. 17 of the Act. _— As for the sub-tenant’s right to make an application for fixation of standard Tent against the tenant, his landlord in respect of the premises let out to him, that he has such a right may be inferred from (1) his inclusion in the definition and (2) the use of the word ‘tenant’ in Ss. 6, 9 and 12 of the Act. It can be however negatived if in the context of these sections, the definition is limited toa tenant and not his sub-tenant. 1. Hira Lal v. Banarsi Dass, 1979 (1) RCR 298 Del. 2. 1971 RCR 552. % Mohinder Kumar Madan v. Madan Mohan Lal, 1972 RCR 112 (SN). . B.P. Achala Anand v. Appi Reddy, 2005 (2) SCALE 105. 5. Kapil Bhargava v. Subhash Chand Aggarwal, 2001 (6) SCC 645. | NANT Gv os a s uy [Sec. 2 a Law of Rent Control in. Delt i i ble bar f : viewe' insuperable bar for a iewed as a whole, there is NO pe mi ; 1 is set fe 8 ‘i { inducted with the consent in ing of d in 1 a sub-tenal ation of stan aly for dard rent against the tenant in respect of landlord, to apply for fix premises sublet to him. All other restrictions as toc Iso be attracted as a necessary ; tionship bi harging premium or excessive rent by the tenant arging consequence. etween the sub-tenant and tenant but t between the sub-tenant and the will al A sub-tenancy creates a relal te any privity of contrac’ J ‘tenant sation. Ree By including the sub-tenant in the definition is only to nt and the sub-tena: cover the case of a sub-tenancy as between the Serie een came subject to the Act and not to place the sub-tena ially deal with The Act does not purport to specially deal wii the nd liabilities of parties to a sub-tenancy as between themselves are to be determined. By virtue of the extended definition it may be said that the principles applicable to the parties to the head lease will also apply to them. The Bihar Act has been applied as between tenant and sub- tenant as if they were landlord and tenant.” A sub-tenant has the right to make an application for standard rent against the tenant under S. 9, West Bengal Act, 19503 Though Schedule A Para 4 of the West Bengal Act 1950 does not prescribe any method of assessment of standard rent between a tenant and sub-tenant, the general principles to be found in the Act may be applied for scaling up or down rent between them.4 When a tenant sublets an accommodation he becomes a landlord of his sub-tenant.> In an application by a sub-tenant under the Bengal Act for fixing the standard rent the landlord is necessary party. The Judicial Commissioner of Ajmer held, with reference to the Delhi Act of 1947, that in an application for standard rent between a tenant and 2 Saal the owner landlord is not a necessary party.” Though our Act silent os regan a es fon eee or an application for eviction of a tenant, it is the definitict of ae anon ‘gr fixation of standard rent. Having regard to toan application by a ee say that a landlord is not a necessary party against the tenant | i necessary party in an application by th Ror a sub-tenant will be a relationships are clearly distinct, whe ee a peer ele let. In law the relationship will be distinct exec oon OF the Premises is sub- inct even though the entire premises are sublet. The findings on such icati i thereto That tie een? eee will be binding on the parties Different standard rents lead to anomalous results cannot be denied. respect of the same prem May be fixed on the two different applications in Premises. The tenant may be paying a small amount to the principles on which rights a 2 : Wa Beg! Ege ce 4 Sulaiman, AIR 1955 Mir 237. " ineers " Sera 4. Hind Estate Ltd. v. Grom pe ® Land & Building Co 5 AG Danton teen ames Lid, LR 1958 2) ra poration, AIR 1954 Cal 127. AC. , nec ; —— 1962 AUL] 553: ne ee Cale 7. ILR 196: 99 Cal Ly 157, 2 (2) All 566. 1 sec. 21 Preliminary 95 landlord and may be entitled to recover a higher amount from the sub-tenant. Even in respect of a portion of the premises the fixation of standard rent, depends upon the material placed by the parties before the Court and different findings, apparently inconsistent and irreconcilable may be reached in the two proceedings independently of each other. Order 1 Rule 10 of the C.P.C. confers large powers on a Court to implead parties. The general rule in suit relating to property is that applicant should have present or direct interest put the rule is relaxable in suitable cases.! Though the sub-tenant in tenant's application, or the landlord in a sub-tenant’s application may not be necessary party, they are certainly proper parties and it is but desirable that the matter Should be decided in the presence of all the three concerned persons. There may, however, be a case where the sub-tenant or the landlord may oppose being joined as a party on the ground of misjoinder. Under S. 6 some grounds for fixation of standard rent relate to matters within the special knowledge of the landlord owner. In such a case he certainly becomes an important witness if not a necessary party. It is submitted that courts of justice have plenary powers to deal with such situation in order to decide the real controversy between the parties and for complete adjudication. The general rule is that a sub-tenant cannot claim larger rights than the tenant who inducted him into possession of the whole or a portion of the premises. It being so, he is not a necessary party in a suit for possession by the landlord against the tenant and may be ejected in execution of a decree passed in such a proceeding. It will be so even if the order or decree is passed on the basis of a compromise between the landlord and the tenant. The Madras Act does not recognise a sub-tenant for any purpose.> A sub-tenant is not entitled to the benefit of S. 7(1) of the Madras Act 1951 as the definition of tenant does not include a sub-tenant in relation to the original landlord.* A sub-tenant cannot interfere by an application in a proceeding for possession instituted by the landlord against his tenant.5 The definition of tenant in S. 2(h) of the Bihar Building Lease, Rent and Eviction Act 3 of 1947 though not including a sub- tenant by express words, was still construed as to include a sub-tenant and it has been held that the sub-tenant is necessary party to an application for eviction by the landlord under S. 11 of the Act. It is submitted that the Patna case is open to criticism. The definition may include a sub-tenant in the sense that a tenancy may be created lawfully between the tenant and the sub-tenant, but it is going too far to say that privity of contract is established between the sub-tenant and the landlord. It is another matter that a sub-tenant may, by virtue of the sub-tenancy, acquire certain rights against the landlord also. 1. AIR 1958 SC 886: 1959 SCR 1111 2. Parthasarathy v. Krishnamoorthy, 1948 (2 ) MLJ 391: AIR 1949 Mad 387; Naryana Pillai v. Kochasan Kunju, AIR 1953 Trav Coch 571. . Dev Raj Bhatt v. V.S. Raja, AIR 1953 Mad 356: 1952 (2) MLJ 179. Express Estates Ltd. v. Modern Furnishing House, AIR 1953 Mad 414. ‘Thakurdas Pushpraj v. Dwarka Prasad, 87 CLJ 181. - Suresh Mohan Thakur v. Shamal Mall Bubna, ATR 1957 Pat 437. aaee [Sec. 2 Law of Rent Control in Delhi 9% ji i int or in ed in the landlord’s suit against the tena Those rights may be determin execution proceedings ent Act. The general law ' is likel se under the presen No such difficulty is likely ae ‘in execution of an order for recovery of hat a sub-tenant is liable to be ejected in Se harentiniesecetiotls powses 1, is recognised in S. 14(3). ¢ possession against the tenant, is laine to have become a tenant, he is not a protected su tenant one se preceeding, against the tenant. The landlord necessary party in a landlord's proceeding against the | peainst both in the has an option to make him a party and obtain an on ed eens same proceeding or he may obtain an order eae eee determination of his rights on the order against the sul a a ; ressl The definition of ‘tenant’ in the E.P. Act, 1949 is different. It is exp : ly stated that ‘tenant’ does not include a person placed in occupation on building or rented land by its tenant, except with the consent in writing of the landlord. It has therefore been held that the head tenant cannot evict a sub- tenant who was put into possession without the consent in writing of his landlord under the Act.! It was a suit and the tenant had obtained a decree for eviction from civil Court. The sub-tenant pleaded in execution that the civil Court’s decree was a nullity as the Controller only had jurisdiction under the Act. Relying on the definition the Court rejected this plea. What the rights and liabilities of a head tenant and sub-tenant are will depend on the law applicable. In general law, sub-tenancy is allowed in the P PP 8 y absence of a covenant between the landlord and head tenant to the contrary. But even a breach of the covenant does not make the sub-tenancy illegal and unenforceable at law. As for the Position under the present Act, see commentary under S. 16. 33. S. 2 (1) (ii)—Any person continuing in possession after the termination of his tenancy or statfitory tenant—The expression ‘statutory tenant’ has its origin in an attempt to reconcile the concept of a tenant under general law and a tenant as defined in Rent Control Legislation. So long as the contractual renancy ee the tenant remains in Possession subject to its terms and conditions. After expiry of ter holding over by aoa “ ™ a tenancy the tenant becomes tenant by Property. Hi r ndlord and b continuing to hold the sp aguaney can be determined by not e ice amas S. 106 of the Transfer service of notice under S. 106 or by f rent by landlo1 , Mere cy, nor cre; grant protection to the The tenant remains in Contract of tenancy by —_™ ‘Ses Not amount to renewal ee of the tenan ject of all islation i ean je all Rent Control Legislation is to the protection of hi Possession of prema 1s contract has been lost. virtue er the determinati ination of the of the Rent Control Act which applies to him, 1. Kashmiri Lal v. Madan Lal, 1979 QORLR 396 p; , 2. Burmah Shell Oil vy. Khaja Midhat Noor, AIR 19 SC 1470: 1988 (3) sce 1988 (2) 7 Noor, AIR 1988 " 1470: 1 : '88 (3) 44: 1988 (2) RCJ 10 . 1067; Delhi Jai Board v. Surendra Pp. Malik, 2003 (104) ‘unj, [Sec. 2 jaw of Rent Control it Delhi aw 0 inst the tenant or in ‘s suit against be determined in the landlord’s Those rights may be me any i resent Act. The gi execution pre culty is likely to arise under the p cent Act The Bere law No a diel Table to be ejected in Dal oder for recover of a sub-tenant is lia cjeted in execution : iw that ie against the tenant, is recognise in S146). Buen it pect of possession agains ry) to ha’ protected sub-lenant a ie against the tenant. The tpndlord . jandlord’s pr a ainst both in the necessary paeodaelieut a pay and obtain an order agains! has an option . ainst the tenant and seek same proceeding or he may bial on set the sub-tenant at the execution determination of his rights on the order aga a i is different. It is expressly definition of ‘tenant’ in the E.P. Act, 1949 is ; a that ‘tenant’ does not include a person placed in Renee building or rented land by its tenant, except with the consent in i 8 Ne landlord. It has therefore been held that the head tenant cannot evict a sub- tenant who was put into possession without the consent in writing of his landlord under the Act.! It was a suit and the tenant had obtained a decree for eviction from civil Court. The sub-tenant pleaded in execution that the civil Court's decree was a nullity as the Controller only had jurisdiction under the Act. Relying on the definition the Court Tejected this plea. What the rights and liabilities of a head tenant and sub-ter 33. 8.2 (I) (ji), MY person continuing in of his tenancy or Possession after StatGtory tenant —Th the termination le expression ‘ Statutory tenant’ has its holding over by accey nant becomes t as Ptance of rent by landlord and p. continuin, to hold be cr tie tI de Tvice of notice under S. 106 of thy au Transf % acceptance of rent | 0 5 TE te OPE ‘Fa new eran doe es amount to renewaled ae ae ons pt Lng ee . of his co, ns Ps son of premice ae ntract has been lost. Y Virtue of the Rent Contre etermination of the 1. Kashmiri Lal y Mada oe fen Lt, 979 Ich applies to him. 2 Burma Shell Oil v. Khajg Mita No Pay t Noor, AIR 1988 3 SC1470; 198g (3) sc Brant protection to the tenant remai ins in contract of tenay ——__£nar C 44: 1988 (2) Rey 10 $C1067; eth jai Board v. Sy rendra P. Malik, 2003 (104) sec. 21 Preliminary 97 since he continues to be tenant by virtue of the statute he is sometimes called a tatutory tenant as distinguished from a contractual tenant. The use of this “sre has been the subject matter of judicial criticism. In England it has een used in statute! but in India none of the Rent Acts use this expression. However it has been used in various judgments as a convenient term to denote a person whose tenancy has been terminated but who has become entitled to continue in possession of premises because of protection afforded by any Rent Act. The statutory protection is operative so long as there is no order of eviction against him on any ground specified in the Act, notwithstanding any contract or law to the contrary, or unless there is voluntary surrender of possession by the tenant to the landlord. Though he continues to be a tenant after the determination of the contractual tenancy on the same terms and conditions, there are some fundamental differences in their status under the English law. However in India the distinction between statutory tenancy and contractual tenancy has been substantially, though not completely, obliterated in course of time. A brief survey of the development of law on the subject will be helpful. A. English law.—Under the Act of 1920 it was held that the right of a statutory tenant to remain in possession is purely personal and is neither assignable nor heritable. The statutory tenancy comes to an end with the tenant’s death or voluntary surrender by him.? Under the general law if, after the termination of the contractual tenancy, the tenant continues to pay rent and the landlord accepts it, a new contract of tenancy, substantially on the same terms and conditions comes into existence by implication of law. This strict rule of common law was held inapplicable to a statutory tenancy. The rule that a statutory tenancy is not capable of assignment, bequest or devolution to a trustee in bankruptcy was upheld.‘ The general law is that in the absence of a contract to the contrary, a tenant may assign, sublet and part with possession of tenancy premises. But in England this right is regulated by statute, As for a statutory tenant, he may sublet a part of the dwelling house but not the whole of it as in that case the tenancy itself ceases to, exist. The general principle that where the lessee underlets a portion of the demised premises and afterwards surrenders his lease to the lessor, the latter cannot ¢ without determining, his interest in a regular dispossess the under-lesse nder, or manner notwithstanding that the under-lessee has notice of the surrel that the lease itself was at the time of surrender liable to forfeiture, was held not applicable to a sub-tenant let into possession by a statutory tenant.5 The Act of 1920 and S. 2 English Rent Act, 1977. 1. See marginal note to $.15 of the (1) AER 853: 1950 AC 401 2. Keeves v. Dean, 1924(1) KB 685 approved in Bakor v. Turner, 1950 HL. 3. Oak Property Co. Ltd. v. Chapmour, 1947(2) AER 1: 1947 1 KB 586. . Lavibond John and Sons Ltd. v. Vincent, 1929 (1) KB 687; Sutton v. Dorf, 1932 KB 304. . Solomon v. Orwell, 1954 (1) AER 874: 1954 (1) WLR 629. [See. 2 Law of Rent Control in Delht 98 . tinue to apply toa contractual tenancy and con 7 as let a portion of the premises. : emi 0 lawfully create a The right of a statutory tenant to sublet ee i eerie ee ev. Russell. h sub-tenancy was discussed at length in Rae v. Russell On 8 (on sos ein iT it was : ev visions in the English Act i enor sohooe contract of tenancy no prohibition against subletting er to sublet part of his premises 01 e cannot, by a number of power to sub! hi though he ¢ It, ve f his premises altho > b: sublettings ear with the whole of the premises which he holds as a statutory general principle will, however, co toa sub-tenant to whom a tenan| tenant. , , The law as to heritability is contained in S. 2(b) read with : ea : fee Sealy of the Act of 1977. Looking to the obvious injustice of the rule tha y tenancy is not heritable, the law at first provided for one transmission a later a second transmission. They are to be found in Part I of Schedule I to the Act. B. Statutory tenancies and statutory tenant under Indian law.—The proposition that, after the termination of the contract, payment of rent by the tenant and its acceptance by the landlord does not by itself, in the absence of other circumstances, result in a new tenancy by implication of law, on a proper interpretation of S. 106 Transfer of Property Act, has been laid down by the Supreme Court in Ganga Dutt v. Kartik Chandra Das.? The right of a sub-tenant as regards a landlord on the termination of the tenancy have also been considered in this connection. Adopting the principle that a statutory tenant has no estate, it was held that surrender of the tenancy by the tenant terminates the sub-tenancy. The view taken in the above case is the basis of the later Supreme Court decision in Sardari Lal Vishwa Nath v. Pritam Singh3 Since interest of a statutory tenant is not assignable, it has been held that where such a tenant company continues in occupation of premises, its interest can not be regarded as property of the company for purposes of S. 22(1) of the Sick Industrial Companies (Special Provisions) Act and prohibition contained therein would not apply to eviction proceedings. On expiry of period of lease ee of India for running a Post office, it becomes a statutory «Ut is immaterial that no fresh lease in accordance with Article 299 of the Constitution is executed. The application of the principles of English law in Indi h F ia ce fe consideration by a full bench of the Calcutta High Court® and later, for the first time by the Supreme Court in Anand Niwas P. Ltd. v. Anandji Kalyanji? with | 1928 (2) KB 117: 1928 AER Rep 262 CA. - AIR 1961 SC 1067: 1962 (2) SC] 584, AIR 1978 SC 1518: 1979 (1) SCR 111. | Shree Chamundi Mopeds LI Sire opeds Ltd. v. Church of South India Trust Assn., AIR 1992 + Surjeet Kaur v. Union of India, 2002(95) DLT 3 2 22: 2002(61) DI Krishna Prasad v. Sarajubala, AIR 1961 Cal 505 FB. meee 7. AIR 1965 SC 414: 1964 (4) SCR 892: 1965 (1) SC 172, Penne SC 1439: 1992(3) aa gee.) Preliminary 99 reference to the provisions of the Bombay Act, 1947. This case dealt with the right of a statutory tenant in the matter of sub-letting. The English law was recognised as good law in India, subject to specific provisions in a particular Act. The heritability of the estate of a statutory tenant came directly for consideration in J.C. Chatterjee v. Krishan Tandon! and it was held that it was | not heritable and the heirs of the deceased tenant brought on record as his legal representatives were not entitled to plead that they had become tenants. The above two cases were followed by the High Courts till the decision of the Supreme Court in Dara pinlal v. Parash Ram.? In that case the court dissented from its decision in Anand Niwas case? and overruled the decision in J.C. Chatterjee’s case, and generally held that it was wrong to import the concept of statutory tenancy from English law in India where the conditions ! are different. It was held that the estate of a tenant i it will not | make any difference that he died before or after the determination of his contractual tenancy on the following principal grounds:— (1) The concept of statutory tenancy in English law is not suitable to Indian conditions. (2) Rent is payable in the same manner after the determination of the contractual tenancy as before it; (3) The restriction in S. 14, MP Act 1961 on the tenant's right to sub-let without the consent in writing of the landlord was wide enough to be applicable to contractual as well as statutory tenant. The defi:ition of ‘tenant’ in S. 2(i) of the MP Act was substantially similar to the unamended definition in S. 2(1) of the present Act and S. 14(1)(a) and (b) of the MP Act are the same as S. 16(3) of the present Act. Both the provisions refer to a ‘tenant’ which refers back to the definition of tenant. In Damadi Lal's case, therefore the third ground was based on the wide language of such sections imposing restrictions as to assignability. In the earlier cases the definition was first interpreted in the light of English law and in its light the reference to ‘tenant’ in sections relating to restrictions as to sub-letting, etc., was held to be limited to a contractual tenant only. In Damadi Lal's case the approach was reversed and a contrary conclusion was reached. In Dhanapal Chettiar v. Yasoda Ammal* a bench of seven judges of the Supreme Court held that the contractual tenancy need not be determined by Notice to quit under S. 106 of the Transfer of Property Act before the landlord could go to Court to seek eviction of the tenant under any Rent Control Act in India in case a ground for eviction had become available, and that in case of tenancy for a limited period the tenancy stood determined by mere efflux of time and no notice to quit was otherwise required. But that will be the —___ 1. AIR 1972 SC 2526: 1972 RCR 675 : 675: 1972 Raj LR 128. AIR 1976 SC 2229: 1976 Supp SCR 645: 1976 (4) SCC 855: 1976 Raj LR 634: 1976 RCR 584: 1976 RCJ 717: 1977 RLR 201. . Anand Niwas v. Anandji Kalyanji Pedhi, AIR 1965 SC 414: 1964 (4) SCR 892. AIR 1979 SC 1745: 1979 (2) RCJ 358: 1979 Raj LR 472. Law of Rent Control Wh into existence by implication of vetween 4 contractual and a finding to that for the limited t Controller for surt or Ren ’ D * as immaterial for this 100 5 come inction bt mn and the C distinction W' hly tenancy hi d to the disti .d its discussio srisdiction of where a month irt_referres but confines he ju situation law. The Cou statutory tenant urpose of invoking 4 : eiction of the tenant, and held that the eee i distinction as good in India also nt Contr A on the Ee te of the statutory tenant on his tain conditions 10 respect of ded definition in the Delhi i anc premises only. It is mn has a te recognised so far as residential premises 4 was a contractual tenant at the time of his will pass to all his heirs at law. No question of se and be applicable only if Il arise. It will ari le : ed in his life time and he had continued in er of eviction during his life time Various Rer have provided for death on certain residential or non resi Act provides for transmis obvious that the distinction hi are concerned. If the decease death, his estate is heritable and applying the specific provision wil contractual tenancy was determin possession till his death as there was no ord resulting in the extinction of the tenancy. The amended definition in the Delhi Act first sets out who a tenant is in general. Then it goes further and includes inter alia under Cl. (ii) any person continuing in possession after the determination of his tenancy. The expression mearé only a statutory tenant and nothing more or less.! Cl. (iii) provides for the transmission of tenancy on his death which would have otherwise come to anend on his death according to English law as adopted in Anand Niwas and EG ie al ee era d in r i i premises. What will be the pualtion kiressect of a ee eee eee | Preis E is question directly arose and was answered by 3 era ourt.? Three questions were referred to the full bench:— “(1) What is the meanin; 7 mi g of ‘tenant’ in S. 2(1) of the Princi i under ee. old definition as it existed prior to ie Decent eee condly in the amended definition with eff oe con effect from 1st December, (2) Does the decisi st Docs Bele ew ore Supreme Court in Damadilal v Parash: eae on of the old definition of ‘tenant’ i 4 ference Ped fei onty decision in Anand Nitoas Pot. Lid andj Kegon oa i ed in J.C. Chatterjee v. Sri Kishan Tandon? aed ac ether in the new definiti ii Sees ‘ition Cl.(ii) and (iii) of independent ee eter CLG). thereat cm be oes without being fettered by it m construed 1 Si urjeet Kaur Tuli v. Union of India, 2002 (95) DLT a 322. 2. Haji Mohamed Din v. Na 1979 larain Da ) RCR 318: 1979 1) Rey 159, 1979 Del 186: ILR 1979 (1) Det 13, : 9: 1979 Raj LR 17 j LR 127: sion of the esta ment of cer! he amen of residential transmis heirs on fulfil dential premises. Tl Sec. 2] Preliminary 101 The Court took the view that Damadi Lal’ : ; ahs al’s case Acts in which the definition of ‘tenant’ twaeleliniioche terete those Though the limited inheritance of a Statutory tenancy w: im by ne ee pe as, » amendet definition, confined to residential premises, the i s, the Bench ha case will not apply but Anand Niwas case will srphy on maa Lal's residential premises. apply in respect of non- The effect of the above two Supreme Court cases in the context of the definition of ‘tenant’ in the Bombay Act as applicable to Gujarat was considered by a full bench of the Gujarat High Court.! It came to eoneieicr very similar to those reached in the Delhi full bench case. The relevant provision related to devolution of tenancy rights of residential premises The rex case which requires consideration is Ganpat Lodha v. Shashikant Shinde. It was a case under the Bombay Act as applicable to Gujarat. S. 5(ii) (c) defines ‘tenant’. It includes “any member of the tenant's family residing with « him at the time of his death”. The case related to a shop and the tespor claimed to have become tenants on the tenant’s death under Cl. (iii) definition. The High Court had held that Cl. (iii) will also apply to ‘| mdents residential premises. The Supreme Court disagreed with the High Court and held that it could not be applied to such premises and thus respondents were liable to be evicted. Damadi Lal's case was not cited before the court. The definition of ‘tenant’ in the Delhi Act came up for consideration before a five judge bench of the Supreme Court in Gian Devi Anand v. Jeewan Kumar3 One Wasti Ram was a tenant in respect of a shop. The High Court held that his contractual tenancy having been determined during his life time, he held no heritable estate and the appeal filed in the High Court by the tenant could not be prosecuted by Gian Devi being his widow and one of his heirs. The appeal was therefore dismissed. Gian Devi appealed to the Supreme Court. Thus the question whether the estate of a tenant whose tenancy had =a determined during his life time is heritable or not in respect of non-residential premises directly arose before the court. The court referred to Damadi Lal's case and proceeded on the basis that it was correctly decided. It held that the definition of ‘tenant’ in MP Act (with reference to which Damadi Lal's case was decided) and that in the Delhi Act, before its amendment as well as after it, were in pari materia and that case applied to the Delhi Act in respect of non- residential premises. The Delhi High Court had held that Damadi Lal’s case was not applicable because of the amendment. The Supreme Court held that Damadi Lal’s case will not apply only if the Act contained a provision relating, { to transmission of the estate of a deceased tenant; in respect of any premises. To those Acts the general rule laid down in Damadi Lal’s case will not apply and the particular provision will prevail. In reaching the conclusion the Court considered at great length the nature of rights of a tenant who continues to 1. Babu Lal v. Shah Bharat Kumar, 1980 (1) RLR 397. 2. AIR 1978 SC 955: 1978 (3) SCR 198: 1978 RCR 187: 1978 (1) RC) 511 3. 1985 (1) RCR 495: AIR 1985 SC 796: 1985 (2) SCC 683 : 1985(1) RCJ 640. 102 Law of Rent Control in Delhi [See. 2 remain in possession of premises after, the termination of tenancy by virtue of Provisions of any Rent Act. It held that such a tenant has an estate or = in the premises which is heritable in accordance with ordinary law of \ succession as distinguished from a mere right of personal occupation. Such right could however be restricted by statute. Since the Delhi Act does not | make provision regarding heritability of tenancy rights of non-residential premises, such right is heritable and devolves on all the heirs. Ganpat Ladha’s | case was held not to be correctly decided. The judgment of the Supreme Court in Gian Devi’s case does not lay down any new law, but only declares the law from the beginning. It applies to all cases. Therefore, a decree passed by the civil court even before the said judgment was delivered on 1-5-1985, according to the previous view that legal heirs of the statutory tenant did not inherit any estate in commercial premises and were unauthorised occupants, is a nullity, and can not be executed.! The principle in Gian Devi’s case would not apply where on facts of the case some of the heirs impliedly surrendered their rights of tenancy.? Statutory f tenancy of commercial premises is heritable and all legal heirs are entitled to protection under the Act.> The position is the same in the case of residential- cum-commerciai premises.* Gian Devi's case has seriously affected the rights of landlords in Delhi as regards letting of non-residential premises. Its effect is that what was intended to be a lease for a temporary period has been converted into a perpetual lease. | The rights of landlords are affected even more under those Acts which do not make any provision for transmission of the tenancy on the death of a tenant in respect of any premises as in the MP Act. Gian Devi’s case has since been followed.> As the position now stands, these situations may arise:— (1) The original tenant continues to be a contractual tenant till his death. His heirs become tenants by inheritance. (2) The tenancy was terminated and he continued in Possession of the Premises as statutory tenant. Under Acts which do not provide for transmission of a statutory tenancy on certain heirs and in specified conditions, and the definition of tenant is in substance the same as 1. Sarwan Kumar v. Madhu Lal, 2003 (4) SCC 147. 2. Pushpa Rani v. Bhagwanti Devi, AIR 1994 SC 774; Prakash Wati Bali v. Manish Dhawan, 1996 (62) DLT 475. #3. Ram Pyasi v. Duni Chand, 1997 (1) RCR 59; Satya Pal Jain v. Khushi Ram Kishan Seth 6 Co, 2001 (90) DLT 621: 2001 (5) AD (Del) 231. 4/ Hari Chand v. Swaran Lal, 1997 (70) DLT 567 : 1997 (3) AD (Del) 530, 5. Sarwan Kumar v. Madan lal, 2003 (4) SCC 147; Keshav Dass v. Prem Nath, ATR 1996 Del 47: 1995 (2) RCJ 151: 1996 (2) RCR 5. 6. Jaimal Singh v. Jaswant Singh, 1989 (2) RC] 246 Del; Krishna Dhona v. Ram Palet Sahoo, 1980 (2) RCR 15 Cal: 1981(1) RCJ 291; Din Dayal & Co. v. Shushal Kumar, 1972 SL] 24 HP; Usha Bhasin v. Competent Authority, 1980 Raj LR 84. Preliminary 103 considered in Damadi Lal's case, that case will govern the matter and all the heirs become tenants and are entitled to claim all the rights which they could claim as the tenant himself.' All decisions laying down that Damadi Lal's case does not apply to cases under the Delhi Act, pertaining to non-residential premises, do not lay down the correct law. But where tenancy premises consisted of a shop and upon the death of the tenant, only one son of the tenant kept on occupying and using the shop, paid rent and was issued rent receipts for several years, and none of the other heirs asserted their tenancy rights, it was held that their conduct established an implied surrender by them of their leasehold rights. Thus they were not entitled to object to execution of eviction order against ’S’2 (3) Where the definition of tenant is based on the concept of qualified heritability of the rights of a statutory tenant on his heirs, Damadi Lal’s case will not apply. The rights of the heirs of the statutory tenants will be regulated by the definition of tenant in the particular statute? Ina case under the Bombay Acct, it has been held that a statutory tenant, i.e. a tenant whose contractual tenancy is terminated and who continues in occupation by virtue of the protection afforded by the Rent Act and against whom a decree of eviction has not been passed, can create a licence.* It may be noted, as a general rule, that the inheritance of the tenancy rights shall also be subject to all the obligations of the deceased tenant, such as second default in payment of rent.> Heirs of the deceased tenant inherit tenancy rights with all obligations incurred by the deceased tenant along with the rights, which he had.° 34. S. 2 (I) (iii}—Devolution or transmission of tenancy on the death of the tenant continuing in possession after the termination of his tenancy; scope.—This clause was introduced by the amended definition of ‘tenant’ substituted by the Delhi Rent Control (Amendment) Act, 1976 for the old definition, with retrospective affect from the commencement of the Act. The clause is not violative of Art. 14 or Art. 21 of the Constitution.” This clause applies only to the tenant whose tenancy had been determined during his life time and he continued in possession even thereafter.’ Even if ihe tenant died ib Gian Devi v. Jeewan Kumar Anand, ATR 1985 SC 796; Harish Chander v. Kirpa Ram, 1986 (1) RCR 545 P&H FB; Sakina Bai v. Shambhoo Bai, 1977(2) RCJ 230 MP; Bhasheshar Nath v. S. Bikram, 1980 (2) RCR 456 Punj, Sushil Kumar v. Bhagwanti Devi, 1989(2) RCJ 629 Del; Pushpa Rani v. Bhagwanti Devi, AIR 1994 SC .774, ‘Shanta Sinha Chenoy v. Krishna Parkash, 1978 (1) RLR 803 Del; Nanu Mal Rijumal v. Lila Ram, 1978 (2) RCJ 136, it was a case of statutory tenancy; Om Parkash v. Kailash Wati, 1981(1) RC] 143 Punj, Haryana Rent Act, 1973; Sarwan Kumar v. Sohan Lal, 1984(2) RCR 630: 1984 (26) DLT 88 DB; Ratan Lal v. Rani Ram, 1986 (1) RCJ 591 : 1986 (1) RCR 545 P & H. | Mani Nariman Dharuwala v. P.N. Hhatena, AIR 1991 SC 1494: 1991 (3) SCC 141. . Imdad Ali v. Keshav Chand, 2003 (4) SCC 635. Parvinder Singh v. Renu Gautam, AIR 2004 SC 2299. Gauri Shanker v. Union of India, AIR 1995 SC 55: 1994 (6) SCC 349: JT 1994 (5) SC 634: 1994 (2) RCJ 391: 1994 (2) RCR 474. * Jaimal Singh v. Jaswant Singh, 1989(2) RCJ 246 Del. Nowe 2 él [Sec. 2 104 Law of Rent Control in Delhi : ' e shall apply as amendment is prior to the Amendment of 1976, the on eee ae eres retrospective in all its consequences.’ Had | \e eet ition would have been different. retrospective the position wo benefits only those relations of is irstly it benefits y scheme of the clause is this. Firstly it benefits ear pe tenant specifically mentioned in the frst part and Seis i it ho had been will benefit only any one or more of them w! i i the premises with such person as a member or members of his family up to the date of his death. ; Explanation I prescribes the order of succession. Cls. (a) to (d) provide for succession to any relation only if the relations mentioned in the earlier higher category do not succeed. These clauses refer to two contingencies; (1) non existence of a relation, ie., he or she had predeceased the tenant or there was no such relation and (2) he or she, if surviving the deceased was not residing ordinarily in the premises with the deceased as a member of hie family up to the date of his death. Thus any heir falling, in any of cave ories (a) to (d) will y 8 y 8 Explanation financially dependent on the deceased Person on the date of his death and ; he was, he will succeed as jenant entitled to remain in possession till his death, not otherwise becoming against him, a successor of the tenant is S of any other successor of the Same category. But if there is no other wHane sor im the same category the heirs of any lower cate the decea: a di ‘sed tenant. Section 2(h 'vorced Wife was held not entitled to the beet it of 1. Prem Prakas 3. Ram Parkash y. Atma Ra im, All 4, Veena Chawla y, Ram Py a ee {97678 PunjLR D ) SCC 693; 1 oa 995(2) RC} 245, 1995(1) ROR 604, ec. 2) Preliminary 105 The scope of definition of the expr, ; include the wife of the tenant who deeertay nena © 10 deserter ife the premises on the argument th d his wif annot be extended to at the ~ and stopped residii . C 7 pped residing in | the Per of the legislature, Such tee Ourt should go into the depth of the it can be tenant only after the death of the tenant and nee og ned (© the ees of the vat and not otherwise.! A legal representative or a legatee of the o a after the death of the tenant cannot set up a cee ee : aim contrary t tenant through whom they were inducted in possession The vrei y coe did not dispute the title of the respondents predecessor. one ma enant daughter and appellants claiming under a wi is death his ill ws F : Were substituted / adverse possession. This was not permissible? They claimed On death of a tenant all his legal representatives should be impleaded and landlord’s objection that only widow is entitled to be substituted should be decided thereafter.° However, an eviction decree obtained by the landlord against even one or some of the legal representatives of a deceased tenant is binding on all the legal heirs irrespective of the fact whether they were impleaded in the proceedings. Such heirs can object to the decree on the | ground of fraud or collusion between the landlord and other heirs and if there was any conflict of interest.4 Thus where one son of the deceased tenant was admittedly paying rent and was admitted to be tenant in previous eviction proceedings, in subsequent proceedings against him alone, under cl. (h), the widow of tenant had no right to be impleaded 5 The tenancy which devolves on the heirs of the deceased tenant is a single indivisible tenancy and the heirs succeed as joint tenants.° Avadh Behari, J. explained the scope of this clause and laid it down in the form of propositions in Mohan Lal Goela v. Sri Kishan.” These are:— “The amendment extends the protection to heirs and successors. But it is a restricted protection. It is not unlimited. There are several limitations on the right conferred by the amendment. Firstly the heir must not be financially independent. If he was not financially dependent on the deceased tenant he has a right a continue "in possession only for a limited period of one year. Secondly only these four classes of heirs: (a) the surviving spouse, (b) son or daughter, (c) parents, and (d) widowed daughter-in-law of a Ly Sudershan Mehta v. N.P. Gupta, 1991 (1) Delhi Lawyer 23: 1991 (44) DLT 206. 2! Rameshwar Lal v. Raghunath Dass, 1990 (4) SCC 729; S. Pritam Singh v. Ram Narain Vij, 1999 (77) DLT 76 DB: 1999(1)AD (Del) 785. 3. AR. Singh v. Sant Lal, 1998 Raj LR (Note) 56 4.| Prakash Wati Bali v. Manish Dhawan, 1996 (62) DLT 475 : 1996 (2) RCR 378 : 1997 (2) RC} 320: 1996 Raj L R 369. 5., Ibid. 6. Delhi Cloth Market Trust Committee v. Sheila Devi, 2001 Raj LR 63. | Wathen 7. TLR 1978 (1) Del 63 at page 73: AIR 1978 Del 92: 1977 (2) RCR 697; also see Kewal v. Lakshmi Narain, 1985 (1) RCR 106 (DB): 1984 (26) DLT 341, [Sec. 2 Law of Rent Control in Delhi 106 - « ferred the right to continue in predeceased son, have been confe1 Ls i e succeeds to the exclusion Thirdly in the order of peers cnclude the parents. The of son or daughter. Son and daughte! iiaettea ear fences parents will exclude the daughter-in-law. The the second and so on. nena Fourthly if there are two successors of the game ee financially them was financially independent and u

    You might also like