• Devesh Saxena

Lessee's Right Against Illegal Eviction

The existence of lopsidedness is universal in the case of commercial and contractual relationships and a prime example of the same is the relation between a lessor and a lessee. Especially, when the subject is immovable property, the owner (Lessor) owing to a better claim to the title may enjoy a proportional degree of control over the tenant (Lessee). This usually leads to the tenants being evicted in an unfair and arbitrary manner, therefore there have been multiple legislations that have enumerated provisions that confer rights onto the lessee.


While it is always advisable to seek a professional’s aid, it also becomes essential that a lessee knows what rights they have been conferred with and when the said right can be claimed. This article seeks to make aware, the reader of their right to retain possession as lessee/tenant and what remedies are available to them under Indian law.


IMPORTANT DEFINITIONS:


A lease is defined under Section 105 of the Transfer of Property Act, 1882 (TOPA) as the transfer of the right to enjoy a certain property for a stipulated period of time in exchange for a predetermined amount of consideration. The person giving the property is called the 'lessor' while the person receiving the same is called the 'lessee'.


Via many definitions by renowned jurists, it becomes clear that there exist two elements of possession- 'corpus' which is the physical relation of control over the property, and 'animus' being the intention of a person to exercise that control over said property. In the case of a lease, possession would hence mean the physical presence of the lessee on the immovable property, with the intention to live or work or exercise his right of possession in any way as stipulated.


'Ejectment' is the common law term to describe the action of recovering the possession of a property by its true owner. Thus, unlawful ejectment in the present context must mean the removal of a lessee without any valid legal grounds.

GENERAL RIGHTS OF THE LESSEE AND DUTIES OF LESSOR:


Even though most of the terms of a lease are determined by a mutually agreed contract, there are many general aspects of the lease agreement mentioned under Section 108 of the TOPA to protect the rights of either party. All of these rights though can be restricted by the terms of the lease agreement between the two parties.


The rights of the lessee include the right to charge for repairs, in case the lessee has to make repairs to the property out of his own pocket, which should have been done for him by the lessor, the lessee is allowed to cut that from the next rent payment as highlighted in the case of Pritam Prakash Davar & Sons HUF v. Krisan Kumar Bhasin[1]. The lessee also has the right to change and amend the fixtures of the immovable property in any way he likes, as long as he returns it in the condition in which he received it. He also has the right to assign his interest, he can sublease the property or parts of the property, and gain rent from that transaction. He also has the right to benefit from any crops that grow on the property when the lease is of uncertain duration.


The lessor on the other hand only enjoys the basic rights to receive a fair amount of rent regularly from the lessee for the duration of the lease and the right to ownership of any addition made to the property naturally or at the expense of the lessee at the end of the term of the lease. But the lessor also has certain duties towards the lessee. They must disclose any defects in the property, they must pass over entire possession and allow the lessee to an uninterrupted enjoyment of the property leased as confirmed in the judgment of Naorang Singh v. A.J. Meik[2].

VALID GROUNDS OF EJECTMENT:


There exist many valid grounds for the ejectment of a lessee, but all of them depend on the actions of the lessee. Using the property for unlawful purposes, causing the property to lose its value, subletting the property without notifying the lessor, intentionally refuting the lessor's title of ownership, not paying the mutually agreed amount of rent, and if someone from the neighborhood has sent a complaint about the lessee to the lessor are basic reasons for a lessor to eject the lessee.


But there also exist certain duties of the lessee towards the lessor, that if not fulfilled could be valid grounds for ejectment. They must maintain the property in a reasonable manner, not cause any permanent damage to the property, and notify the lessor of any potential damage to the property. The lessee must also make sure to regularly and punctually pay the stipulated rent till the day he has to restore the property to the lessor at the end of the lease agreement.


The final and most important legal ground for ejectment is the termination of the lease agreement. This can be done with the mutual agreement of both parties, or if the lessor’s interest in the property has changed and he uses one of the valid grounds mentioned above, or if the lessee forfeits his right to the property for any reason. But the most usual way that a lease is terminated is due to the expiry of the specified time period.


Therefore, in the absence or expiry of a legitimate reason the lessee cannot be evicted from the property, this can be clearly witnessed in the case of Seshambal (dead) Through L.Rs v. M/s Chelur Corporation Chelur Building & Others[3] where the Apex court held that the right to eviction even in the case of a lessor’s bona-fide interest ceases to exist on the death of such lessor. Thereby upholding the lessee’s right to retain the property.

PROCEDURE FOR LAWFUL EJECTMENT:


Generally, a lessor would have the right to end a lease at his own will because of his position as owner of the property, but due to multiple rent control ordinances and other acts protecting the rights of the lessee, there is a whole process to be followed if the lessor wants to end/terminate the lease/rent agreement. The process and the grounds for ejectment may be different in different regions as per respective state legislations.


The lessor must first serve the lessee with a notice of ejection, showing cause for the same, and give him 15-180 days’ time to vacate the premises. If the premise has not been vacated in the time given, the lessor may approach the court and file an eviction suit and allow the tenant to answer to the court within the specified period of time. If the court then goes on to pass an order in favour of the lessor, law enforcement officials shall notify the lessee of legal eviction. Then as a final measure, the lessor may proceed with the help of law enforcement officials to remove the lessee physically.


When the lessor ignores procedure and uses physical force and intimidation to remove the lessee from the property, this is called self-help eviction. Changing the locks, removing the personal belongings of the lessee, shutting off the utilities are a few unlawful ways of doing this.

REMEDIES AVAILABLE TO THE LESSEE:


If any of the steps mentioned above are not followed, the ejectment would be rendered unlawful. Even if all the steps mentioned above are followed, but the lessor has no valid reason to eject the lessee, the lessee can exercise certain rights and bring a suit of legal action against the lessor.


Since the relation between the lessor and the lessee is contractual in nature, the act of unlawful eviction by the owner would be a breach of contract and would very well entitle the lessee for a remedy under the Specific Relief Act, 1963. Section 5 provides for possession on the basis of better “title” which can depend on either ownership or possession. Illegal Ejectment being a breach of contract in regard to the contract of lease, the lessee can retain possession owing to his better claim on title under this provision. Section 6 of the Specific relief act gives the Lessee the right to file a suit for recovering possession if he has been illegally dispossessed by force.


In this suit, the lessee may claim relief against many things beyond the wrongful eviction too. That may include trespassing, assault, battery, etc if the lessor used physical force. The court may also award the lessee damages multiple times of the rent amount if they deem fit. The lessor may have to pay for the damage caused to the property, or for the cost of temporary housing for the lessee in the form of economic damages for illegally throwing them out. Non-economic damages would include payment for causing any pain and suffering and punitive damages may be awarded as a form of deterrent punishment to make sure the lessor doesn’t repeat such an act.


However, a suit for ejectment is prohibited under various Rent Control Acts and a different mechanism for eviction of the tenant is provided thereunder. Therefore, in case there is a prohibition under the applicable Rent Control Act, then the lessor would not have the right to file a suit for ejectment, and thus, the lessor would be bound to comply with the procedure provided under the applicable Rent Control Act.


Therefore, other than the Specific Relief act, a tenant also has the right to approach the rent controller authority or file a suit under the valid rent control act for the state. A few examples of the said provisions are Section 14 of the Delhi Rent Control Act, 1958 that protects tenants living in Delhi against eviction on any ground other than that mentioned in the said section, the same concept is covered under Section 6 of the West Bengal Premises Tenancy Act, 1956 for aggrieved tenants in West Bengal. Almost every state in India has a similar act with regulations valid within their jurisdiction, for the benefit of the citizens.


Moreover, when the term of a lease has expired, the lessee can determine the lease by fulfilling his obligation of putting the lessor into possession of the property. But if the lessee does not put the lessor into possession of the property, and on the contrary, remains in possession thereof, then he does not become a trespasser in relation to the property, but his status is that of a tenant on sufferance.[4]


Even if the landlord does not assent to the tenant continuing in possession of the property and the tenancy is not renewed as provided in Section 116 of the Transfer of Property Act, the tenant does not become a trespasser. The tenant has juridical possession of the property and no one can deprive him of such juridical possession except in due course of law. The tenant can as pointed out by Mr. Justice Batchelor in Rudrappa v. Narsingrao [5], "recover as against a third party who unlawfully dispossesses him." Even the landlord cannot suo motu dispossess a tenant without his consent and if he does so, the tenant would be entitled to recover possession from him by resorting to the remedy provided under Section 9 of the Specific Relief Act. The possession of an erstwhile tenant remaining in possession of the property after determination of the lease is thus fundamentally different from that of a trespasser. Whereas a trespasser is never in juridical possession of the property, and he can always be thrown out if the landlord can do so peaceably, the possession of an erstwhile tenant is juridical and he is a protected from dispossession otherwise than in due course of law. Therefore, as far as the Indian Law is concerned, a tenant remaining in possession of the property after determination of the lease can never become a trespasser.[6]

CONCLUSION:


Law recognizes abuse of power that may arise due to the position of the lessor/owner and affords the lessee/tenant rights to recover and retain possession of the property in cases of Illegal ejection. Even on the expiry of the period of lease, the erstwhile lessee continues in possession because of the law of the land, namely that the original landlord cannot physically throw out such an erstwhile tenant by force. He must get his claim for possession adjudicated by a competent court as per the relevant provisions of law. The status of an erstwhile tenant has to be treated as a tenant at sufferance akin to a trespasser having no independent right to continue in possession.[7]

[1] (2009) 1 RCR(RENT)562. [2] AIR 1923 Cal 41. [3] AIR 2010 SC 1521.

[4] Surajmal Marwari And Ors. v. Rampearaylal Khandelwal And Ors, AIR 1966 Pat 8.

[5] (1905) LR 29 Bom. 213

[6] Nanalal Girdharlal v. Gulamnabi Jamalbhai Motorwala, AIR 1973 Guj 131.

[7] Raptakos Brett And Co. Ltd v. Ganesh Property, [1998] 7 SCC 184


(This article is authored by Vidhit Chandan and Sai Tejaswaroop, Interns at S&D Legal Associates)

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