By Aaryan Dhar
Recourse available for non-payment of rent by the Lessee
Rent Control Acts are controlled by State Governments in India. To contend with the concerns of renters and homeowners, each of the country’s 29 states has its own set of rent control laws.
While these acts were enacted with the purpose of protecting the interests of tenants, it also has clauses that grant the owner some rights over his house.
Various Acts apply in different parts of the world, each with its own set of rules governing the privileges and responsibilities of landlords. In different Rent Control Acts, there are a few clauses that are almost identical.
The below are the options that a homeowner has in both actions to get his house vacated:
- When a homeowner violates any of the terms of the lease, the owner has the right to reclaim ownership of the property. The issues listed in sub-clause (o) of section 108 of the Transfer of Property Act, 1882, which involve the colour of the tiles, walls, and other objects, give a landlord the right to vacate his property.
- If he has erected or done some building on the rented house without his permission, he will order the occupant to vacate. Whether the tenant, or someone else who is reported to be under his supervision or living with him, has done something that is considered a disturbance or has irritated the neighbours can also be considered as a cause for termination.
- If the occupant has provided notice that he will vacate the property, and the landlord has identified a new tenant in response to the notice, but the tenant refuses to vacate. If the landlord has a legitimate and reasonable use for the property.
So, if a tenant is not paying rent or vacating the premises, the landlord can contact the Rent Control Board and recommend that the Board intervene in the issue; if the Board is convinced that the landlord’s claims are correct and that his rights have been violated, the Board will order the tenant to vacate the premises.
Section 114 of the Indian Property Act 1882
“Where a lease of immoveable property has determined by forfeiture for non-payment of rent, and the lessor sues to eject the lessee, if, at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrear, together with interest thereon and his full costs of the suit, or gives such security as the Court thinks sufficient for making such payment within fifteen days, the Court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred.”
The occupant is protected from forfeiture under Section 114.
Although the occupant is protected from eviction for non-payment of rent, the landlord receives the privilege of restitution, even though the arrears are not technically recoverable. Section 114 of the Transfer of Property Act enacts an equal clause that governs only to the degree that it does not conflict with any other legislative requirements.
The landlord’s ability to evict the occupant is restricted under the Rent Act. Since the statute limits the landlord’s ability to evict a resident but in compliance with the terms of Section 114 of the Rent Act, it is not attracted.
Once the provisions of the Rent Act are met, the occupant is no longer entitled to the double cover provided by the Transfer of Property Act. This can be seen in the case Prithivichand Ramchand Sablok v. S.Y. Shinde[1].
New Reforms – Draft Tenancy Law 2019[2]
Several states have their own state laws governing the rental properties in that area. These laws are quite old and archaic and need to be reformed for the betterment of bot the parties.
Thus, to solve this issue one centralised tenancy law is being implemented in place to remove the irregularities of the different state laws in the rental market.
The model
Safety deposits have been set at a maximum of two months’ rent in residential properties and a minimum of one month’s rent in non-residential properties, according to the proposed draft Model Tenancy Act for 2019.
Failure to vacate a residential unit is punishable under the draft. If an occupant may not vacate the property until the lease has been terminated by order, notice, or arrangement, the landlord is entitled to reimbursement of twice the monthly rent for the first two months and four times the monthly rent after that.
In addition, the owner is not allowed to raise the rent in the middle of the lease.
Injunction levied against the Landlord by the Tenant
A tenant is not entitled to levy an injunction on the landlord under the Indian legal system, according to the state rental laws present in India. The landlord being the rightful owner of the said property, has the right to enjoy his property and can ask the tenant to vacate the said estate and end the tenancy agreement, when he/she requires the said property.
Further it is stated in the case of Balkrishna Dattatraya Galande v Balkrishna Rambharose Gupta and another[3] that – Permanent injunctions can only be issued to anyone who is in direct possession of the property in a suit brought under Section 38 of the Specific Relief Act. The appellant bears the burden of proving that he was in real and tangible custody of the land on the day of the lawsuit.
Thus, it was stated in the underlying case that an injunction cannot be granted against the landlord in this matter at hand as the plaintiff failed to show direct possession of the property.
Further it has also been seen by the Madras High Court case of Saraswathi Ammal vs Viveka Primary School[4] – An injunction prohibiting the landlord from evicting the tenant is not possible. If such an injunction is upheld, it would place a restriction on the landlord’s right to enjoy his/her property. As a result, the decisions and decrees of the lower Courts cannot be upheld.
As a result, the decree may be changed to state that the lender, the appellant, cannot evict the occupant, the respondent, without following due process.
It can also be seen in the case of Subhash Joshi And Anr. vs Mohd. Sultan S/O Abdul Gani and ors.[5] –
As previously stated, the petitioner must have a lawful right to the remedy sought before obtaining an injunction, whether immediate or lasting. That will be a claim against a licensee and a licensor pertaining to the restitution of possession where the appellant argues that he is a licensee of the suit premises and the respondent is a licensor, and under that basis he needs the Court’s help to secure his possession.
Since the non-payment of the rent results in the termination of the contract, the tenant cannot prove his right as a licensee and an injunction cannot be granted.
The rights to use the said property are transferred from the landlord to the tenant when there is a tenancy contract between them. By not paying the rent as stipulated in the tenancy agreement, the landlord can terminate the said contract and ask for the tenant to vacate the property.
Since the tenant is not the owner of the property and does not have the lawful possession of it after the termination, he/she cannot put an injunction against the landlord (who is the lawful owner of the property.
Conclusion
The bottom line is that an injunction cannot be granted against a landlord by the tenant when the tenant has defaulted on his part of paying the rent.
The tenant can ask for a temporary injunction in certain other cases, where the landlord has terminated the contract and is evicting him/her on unreasonable basis, or when the tenant has a medical emergency, old parents, and other such circumstances, where he/she can grant for the same before the appropriate forum. (Not given in any state rental laws)
References
- Section 114 of the Indian Property Act 1882
- Section 38 of the Specific Relief Act
- Prithivichand Ramchand Sablok v. S.Y. Shinde, AIR 1993 SC 1929 ↑
- Available at: mohua.gov.in/ ↑
- Balkrishna Dattatraya Galande v Balkrishna Rambharose Gupta and another Writ Petition no. 6873 of 2016 ↑
- Saraswathi Ammal vs Viveka Primary School AIR 2001 Mad 417 ↑
- Subhash Joshi And Anr. vs Mohd. Sultan S/O Abdul Gani and ors AIR 2006 Bom 153 ↑