Tag Archives: eviction

Validity of Notice Under Section 30 of – Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction), Act

In Dr. Babu Ram Sharma v. IVth Additional Judge, Saharanpur and others, (2006) 2 ARC 239 and Noor Mohd. and another v. IVth Additional District Judge , Kanpur Nagar and others, (2006)  1 ARC 550, the Hon’ble Allahabad High Court again took the view that when the entire rent due till the date of notice had already been validly deposited under Section 30 of the Act, the notice of demand is bad in law, and therefore, since at the time of notice, tenants were not defaulter in payment of rent for four months or more, the suit filed on the ground of default was liable to be dismissed. It was held that the suit for eviction was not maintainable as at the time of notice, the tenant was not defaulter since he had already validly deposited the rent under section 30 of the Act. It was further held that under the circumstances, the suit was not maintainable under section 20(2) (a) of the Uttar Pradesh Regulation of (Letting, Rent and Eviction) Act, 1972.      The default contemplated under section 20 (2) (a) should be in regard to rent for a period of not less than four months. The provision does not say that even if the tenant is in arrears of rent for less than four months he would be liable to be evicted under it on the mere ground that default had continued for more than four months. Even Notice of demand will be invalid and could not be considered to be a notice of demand under the said provision if the tenant was not in arrears of rent for more than four months.  Nand Lal Keshari v. Shashi Bhushan Agarwal, 2020 (2) AWC 1787.

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Property Owner – Has the Right to Use the Property As he Chooses

In Faruk Ilahi Tamboli v. B. S. Shankarrao Kokate, 2016 (1) ARC 1, the Hon’ble Supreme Court held that it certainly cannot be the claim at the behest of a tenant, that the owner of a premises must continue in business with his parents or relations, assuming there was a joint business activity, to start with. That is usual, assuming there was a joint business activity, to start with. That is usual, and happens all the time when children come of age. And thereafter, they must have the choice to run their own life, by earning their own livelihood. The property owner has the right to use his property as he chooses, for running his business. There could be no irregularity if owner of the property chooses to use his property as he chooses, for running his business, independent of the business of other family members. In Anil Bajaj v. Vinod Ahuja, 2014 (2) ARC 265, the Hon’ble Supreme Court held that it is not for the tenant to dictate to the landlord as to how the property belonging to the landlord should be utilized by him for the purpose of his business. Even if the landlord is doing business from various other premises, it cannot foreclose his right to seek eviction from the tenanted presmises so long as he intends to use the said tenanted premises for his own business. Hari Shanker v. Om Prakash, 2018 (127) ALR 589.

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Failure to Pay Rent – Deliberate Default

In Santosh Mehta v. Om Prakash, (1980) 3 SCC 610, it was held that the power to strike out a party’s defence is an exceptional step and has only to be exercised where a “mood of defiance” and “gross negligence” on the part of the tenant is detected. It was held as under: “We must adopt a socially informed perspective while construing the provisions and then it will be plain that the Controller is armed with a facultative power. He may, or may not strike out the tenant’s defence. A judicial discretion has built-in self-restraint, has the scheme of the statute in mind, cannot ignore the conspectus of circumstances which are present in the case and has the brooding thought playing on the power that, in a court, striking out a party’s defence is an exceptional step, not a routine visitation of a punitive extreme following upon a mere failure to pay rent. First of all, there must be a failure to pay rent which, in the context, indicates wilful failure, deliberate default or volitional non-performance. Secondly, the section provides no automatic weapon but prescribes a wise discretion, inscribes no mechanical consequence but invests a power to overcome intransigence. Thus, if a tenant fails or refuses to pay or deposit rent and the court discerns a mood of defiance or gross neglect, the tenant may forfeit his right to be heard in defence. The last resort cannot be converted into the first resort; a punitive direction of court cannot be used as a booby trap to get the tenant out. Once this teleological interpretation dawns, the mist of misconception about matter-of-course invocation of the power to strike out will vanish. Farewell to the realities of a given case is playing truant with the duty underlying the power. Dina Nath v. Subhash Chand Saini, (2019) 9 SCC 477

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Eviction Suit – Title of Landlord

As regards the relevance of the issue of title of the landlord in an eviction suit under rent laws it is fairly well settled that the impleadment of co-owner/co-sharer to the proceedings is not essential as eviction proceedings can normally be decided on merits in absence of such co-owner/co-sharer. In an eviction suit filed by the landlord, only landlord and tenant are necessary parties and in view thereof title of landlord in an eviction suit is not relevant. If the landlord fails to prove his title but proves relationship of landlord and tenant, and proves existence of any ground pleaded for eviction then his suit would succeed. On the other hand, if the landlord proves his title but fails to prove relationship of landlord and tenant, then his suit would fail. Shahnaj Begum v. Taj Mohammad, 2019 (134) ALR 800.

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Filed under Eviction Suit, Rent Control, Uncategorized

Rent Law – Object Of

The object of rent law is to balance the competing claims of the landlord on the one hand to recover possession of building let out to the tenant and of the tenant to be protected against arbitrary increase of rent or arbitrary eviction, when there is acute shortage of accommodation. Though, it is for the legislature to resolve such competing claims in terms of statutory provisions.
In Malpe Vishwanath Acharya v. State of Maharashtra, (1998) 2 SCC 1, the Hon’ble Supreme Court emphasized the need of social legislations like the Rent Control Act striking a balance between rival interests so as to be just to law. The law ought not to be unjust to one and give a disproportionate benefit or protection to another section of the society. While the shortage of accommodation makes it necessary to protect the tenants to save them from exploitation but at the same time the need to protect tenants is coupled with an obligation to ensure that the tenants are not conferred with a benefit disproportionately larger than the one needed. Socially progressive legislation must have a holistic perception and not a short sighted parochial approach.
In Arjun Khiamal Makhijani v. Jamnadas C. Tuliani, (1989) 4 SCC 612, it was observed that provisions contained in such legislations are capable of being categorized into two: those beneficial to the tenants and those beneficial to the landlord. As to a legislative provision beneficial to the landlord, an assertion that even with regard to such provision an effort should be made to interpret it in favour of the tenant, is a negation of the very principle of interpretation of a beneficial legislation. Sidhharth Vyas v. Ravi Nath Misra, (2015) 2 SCC 701.

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Landlord – Cannot be denied Eviction

It is well established that findings on twin issues of bona fide need and comparative hardship are findings of fact. Equally well settled is the proposition that High Court in exercise of it’s jurisdiction under Article 226 of the Constitution of India does not interfere with the findings of fact unless it is demonstrated that the same is vitiated by manifest error of law or is patently perverse or based on non consideration or misreading of any material piece of evidence.
No doubt whenever a decree of eviction is passed against a tenant he shall suffer hardship but the same by itself cannot constitute hardship of greater degree so as to refuse the landlord a decree for eviction. The owner of a property cannot be denied eviction and compelled to live poorly and without a decent livelihood merely to enable the tenant to carry on his flourishing business activity. Shrawan Kumar and Another v. Rajat Verma, 2013 (5) AWC 4771.

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Object of Section 145 compared with powers under Section 146 CrPC

The object of Section 145 CrPC is merely to maintain law and order and to prevent breach of peace by maintaining one or the other of the parties in possession and not for evicting any person from possession. The scope of enquiry under Section 145 is in respect of actual possession without reference to the merits or claim of any of the parties to a right to possess the subject of dispute.
Under Section 146(1), a Magistrate can pass an order of attachment of the subject of dispute if it be a case of emergency, or if he decides that none of the parties was in such possession, or he cannot decide as to which of them was in possession. Sections 145 and 146 of the Criminal Procedure Code together constitute a scheme for the resolution of a situation where there is a likelihood of a breach of the peace and Section 146 cannot be separated from Section 145 CrPC. It can only be read in the context of Section 145 CrPC. If after the enquiry under Section 145 of the Code, the Magistrate is of the opinion that none of the parties was in actual possession of the subject of dispute at the time of the order passed under Section 145(1) or is unable to decide which of the parties was in such possession, he may attach the subject of dispute, until a competent court has determined the right of the parties thereto with regard to the person entitled to possession thereof.
The ingredient necessary for passing an order under Section 145(1) of the Code would not automatically attract for the attachment of property. Under Section 146, a Magistrate has to satisfy himself as to whether emergency exists before he passes an order of attachment. A case of emergency, as contemplated under Section 146 of the Code, has to be distinguished from a mere case of apprehension of a breach of peace. The Magistrate, before passing an order under Section 146 of the Code, must explain the circumstances why he thinks it to be a case of emergency. In other words, to infer a situation of emergency, there must be material on record before the Magistrate when the submission of the parties is filed, documents produced or evidence adduced. Ashok Kumar v. State of Uttarakhand and others, (2013) 3 SCC (Cri) 177.

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Filed under breach of peace, Criminal Law, Uncategorized