Leave and License Basis – If licensee does not vacate after lease term expires

[Sri Kanitkar]

1. In Mumbai, if a lessor gives his residential premise on a Leave & License Basis (L&L for brevity), then both of them are governed by Section 24 of the Maharashtra Rent Control Act, 1999 (MRCA). Due to this the ‘licensee’ does not become a ‘tenant’ under this Act.

2. What legal remedies are available to a lessor, if the lessee does not vacate the premise after the expiry of the lease period (i.e. overstays or becomes a trespasser)? If possible kindly specify the Section and the Act?

3. I read somewhere that if there is a ‘trespasser’, then the owner can resort to a particular Section of the Civil Procedure Code, to get the trespasser immediately evicted, provided the owner acts within six months. Is this correct and can you please specify under which Section and Act this legal remedy is available to an owner?

4. Is the legal remedy mentioned in point-3, available if a licensee overstays beyond the lease term?

5. Can any criminal proceedings also instituted against the lessee for overstaying?

6. Thanks.

[Dr. Ashok Dhamija]

Section 24 of the Maharashtra Rent Control Act, 1999, lays down the remedy to the landlord to recover possession of premises given on leave and licence basis on expiry of licence:

“24. Landlord entitled to recover possession of premises given on licence on expiry. (1) Notwithstanding anything contained in this Act, a licensee in possession or occupation of premises given to him on licence for residence shall deliver possession of such premises to the landlord on expiry of the period of licence; and on the failure of the licensee to so deliver the possession of the licensed premises, a landlord shall be entitled to recover possession of such premises from a licensee, on the expiry of the period of licence, by making an application to the Competent Authority, and, the Competent Authority, on being satisfied that the period of licence has expired, shall pass an order for eviction of a licensee.

(2) Any licensee who does not deliver possession of the premises to the landlord on expiry of the period of licence and continues to be in possession of the licensed premises till he is dispossessed by the Competent Authority shall be liable to pay damages at double the rate of the licence fee or charge of the premises fixed under the agreement of licence.

(3) The Competent Authority shall not entertain any claim of whatever nature from any other person who is not a licensee according to the agreement of licence.

Explanation- For the purposes of this section,-

(a) the expression “landlord” includes a successor-in-interest who becomes the landlord of the premises as a result of death of such landlord; but does not include a tenant or a sub-tenant who has given premises on licence;

(b) an agreement of licence in writing shall be conclusive evidence of the fact stated therein.”

As regards the legal powers of the owner to evict the trespasser, the relevant legal position is that the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking the law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.

It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. 

No one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and reinstate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. It is difficult to lay down any hard-and-fast rule as to when the possession of a trespasser can mature into settled possession. The “settled possession” must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase “settled possession” does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacket.

In fact, following tests have been laid down by courts as a working rule for determining the attributes of “settled possession”:

(i) that the trespasser must be in actual physical possession of the property over a sufficiently long period;

(ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case;

(iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and

(iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner, has no right to destroy the crop grown by the trespasser and take forcible possession.

 In this regard, also see Section 6 of the Specific Relief Act, 1963:

“6. Suit by person dispossessed of immovable property.—(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.

(2) No suit under this section shall be brought—

(a) after the expiry of six months from the date of dispossession; or

(b) against the Government.

(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.

(4) Nothing in this section shall bar any person from suit to establish his title to such property and to recover possession thereof.”

A licensee overstaying beyond the licence period cannot be evicted by force. You have to take recourse to the legal process for his eviction, as may be applicable.     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Sri Kanitkar]

Thanks Sir for your prompt and detailed reply.

1. Who is designated as ‘Competent Authority’ for evicting an overstaying lessee?

2. If a lessor acts within six months (as required by Section 6 of the Specific Relief Act), then how easily and quickly can he evict an overstaying lessee?

[Dr. Ashok Dhamija]

1. Please ask some lawyer practicing in Maharashtra (or any other expert person in Maharashtra). It is a Maharashtra specific Act and I do not practice there.

2. It appears that you have not read Section 6 properly and have not understood the same. Please engage some local lawyer if you are not able to understand the legal provision on your own which has been informed to you.     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Sri Kanitkar]

Dear Sir,

1. Thanks for your valuable time and kind advice, which I shall follow. After all the subject is complicated and a face-to-face meeting can solve it better.

2. I apologize if your time was wasted in answering my question.

[Author]

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