Parting with premises by tenant without consent of landlord sufficient for eviction

Parting with premises by tenant without consent of landlord sufficient for eviction

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The Supreme Court of India comprising a Bench of S.A. Bobde and L. Nageswara Rao, JJ., in the case of Bhairon Sahai v. Bishamber Dayal, (2017) 8 SCC 492, in which an eviction petition was filed under Section 14 of the Delhi Rent Control Act, 1958 decided that parting with possession of premises without consent of the landlord is a sufficient ground for eviction of tenant.

In the instant case, the appellant – Landlord, who had bought a tenanted property which was already let out to Respondent No. 1 had issued a notice terminating the tenancy on the ground that Respondent 1 had parted with the possession of the premises without his consent and that he had caused substantial damage to the premises. It was stated in the eviction petition that the Respondent No. 1 had sublet a part of the said premises to the Respondent No. 2 who was running a ration shop.

The Rent Controller had allowed the eviction petition and had evicted the tenant from the said premises stating that the Respondent No. 2 was holding the license of the ration shop and according to Section 4 of the Delhi Rationing Order, 1964, only the licensed person can run the ration shop therefore, the Rent Controller held that the Respondent No. 1 had sub-let the said premises to Respondent No. 2.

The Rent Control Tribunal, Delhi reversed the finding and order of the Rent Controller which was further upheld by the Delhi High Court. In appeal, the question before the Hon’ble Supreme Court of India was whether a landlord is entitled to seek eviction of the respondents on the ground of parting with possession without his consent.

A landlord can move an eviction petition in case the tenant sublets the property to someone else under Section 14(1) of the Delhi Rent Control Act. which is as follows:

14. Protection of tenant against eviction.—(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant:

Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely—

(a) that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the manner provided in Section 106 of the Transfer of Property Act, 1882 (4 of 1882);

(b) that the tenant has, on or after the 9th day of June, 1952, sublet, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord.”

Another relevant provision in cases of subletting done by the tenant is given under Section 14(4) which is as follows:

“14. (4) For the purposes of clause (b) of the proviso to sub-section (1), any premises which have been let for being used for the purposes of business or profession shall be deemed to have been sublet by the tenant, if the Controller is satisfied that the tenant without obtaining the consent in writing of the landlord has, after the 16th day of August, 1958, allowed any person to occupy the whole or any part of the premises ostensibly on the ground that such person is a partner of the tenant in the business or profession but really for the purpose of subletting such premises to that person.”

The scope of the above two sections has been discussed in the case of Munshi Lal v. Santosh, (2017) 12 SCC 721, in which the Supreme Court of India had observed,

“Clause (b) of the proviso to sub-section (1) provides for the eviction of a tenant who has sublet, assigned or otherwise parted with the possession of the premises without obtaining the consent in writing of the landlord.

This sub-section (4) provides that if a person is allowed to occupy the premises ostensibly as a partner of the tenant but really for the purpose of subletting it, such an arrangement would be deemed to be subletting. Therefore, if the tenant has allowed any person to occupy the whole or any part of the premises, actually for the purpose of subletting but speciously by entering into a partnership with him, such an arrangement shall be deemed to be subletting. In other words, subletting is not permitted by camouflaging it as a partnership.

12. The combined reading of clause (b) of the proviso to Section 14(1) read with Section 14(4) makes it clear that before a tenant can sublet, assign or part with the possession of any part of the premises or the whole, it must be preceded by the consent in writing from the landlord. In other words, the requirement of obtaining the consent in writing of the landlord is retained as a pre-requisite even for the purposes of sub-section (4). What is of importance is, in either case whether a person has been inducted genuinely as a partner and therefore allowed to occupy the premises or whether the partnership is a ruse, the requirement of consent in writing as in sub-section (1) is retained. In the present case, there is no evidence that the tenant obtained the consent in writing from the landlord before allowing the son-in-law to occupy the premises in pursuance of the partnership deed.”

Deciding the present case, Supreme Court observed,

“10. Eviction can be sought by a landlord if the tenant sublets, assigns or otherwise parts with possession without his consent. We are of the opinion that the Rent Controller was right in finding that Respondent 2 was carrying on the business as authorised ration distributor in a portion of the premises from 1964 as he was the licensee. Parting with the possession of the premises without consent of the landlord was sufficient for eviction of the tenant without getting into the question of subletting or assignment.

11. No consent was sought before the respondents entered into partnership. This partnership was formed in 1977 after the business of a fair price shop was being carried on from 1964. The Rent Controller held that it is not necessary to decide about the genuineness of the partnership in the eviction petition. Even the Appellate Tribunal did not adjudicate on the partnership between the respondents. The High Court refers to the partnership deed dated 1-1-1977 only for the purpose of holding that Respondent 2 was permitted to use a portion of the premises but was not given exclusive possession.”

Accordingly, the Supreme Court allowed the appeal filed by the landlord and directed the respondent to vacate the premises within 2 months.

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