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FIRST REPORT

OF

UTTAR PRADESH STATE LAW COMMISSION

FOR

AMENDMENTS IN

THE UTTAR PRADESH URBAN BUILDINGS

(REGULATION OF LETTING, RENT AND EVICTION)

ACT, 1972

(FEBRUARY, 1997)

ऋत ंव�दष्या� स् ंव�दष्या� तम�यनवता

TRUTH SHALL WE SPEAK, RIGHT SHALL WE SAY, BE THAT OUR STRENGTH

From

Justice Srinath Sahay,

Chairman,

U.P. State Law Commission

Lucknow

To

Sri Ravindra Dayal Mathur,

Principal Secretary,

Lagislative & Parliamentry Affairs,

Government of Uttar pradesh,

Lucknow.

Letter No. RA. VI. AYO./RESEARCH -20/97 -965 Dated Lucknow 18 February 1997

Sir,

The State Law Commission was constituted by the State

Government by notification No. 1788/XVII-VI-1-151-70(T.C.), dated 5

September 1995. The Chairman of the Commission was appointed by

notification dated 6 September 1995 and the two whole time Members were

appointed by notification dated 11 March 1996. In this way the commission

came to be fully constituted as a matter of fact on 11 March 1996. Thereafter,

financial and other resources were made available from time to time to the

Commission and the pace of establishment of the administrative infrastructure

of the Commission was accelerated. Meanwhile, the commission, even with the

minimum resources at its disposal, set upon the task of giving shape to its

assignment and commenced study and examination of various subject.

The particulars of the matters referred to the Commission are to be

found in the aforesaid notification dated 5 September 1995. The subjects

referred to the Commission are, mainly, removal of vagueness and

inconsistencies in the State laws, provision of less costly justice to the general

public and elimination of delays in the disposal of cases and the task of making

recommendations regarding the same was assigned to the Commission. It was

considered

appropriate, after ascertaining the feelings prevailing in the legal

and judicial circles, that the subject pertaining to U.P. Urban

Buildings (Letting and Regulation of rent and Eviction) Act 1972

(U.P. Act No. 13 of 1972) may be taken up for closer examination.

This Act affects a large portion of the population in the State.

Moreover, the Act has a direct impact on the problem of

accommodation which is related to the three basic necessities of

human beings namely, food, clothing and housing. The enactment

was made in 1972 when accommodation problem was very acute

and it was necessary to provide protection to the tenants from the

oppression and exploitation of the landlord. After 1972, during the

last twenty five years significant changes have taken place in the

economy, both in matters of structure as well as policy. In order to

provide encouragement to house building for effecting increase in

the number of available accommodations, the Act has been

amended from time to time and provisions of the Act have been

made liberal and conducive to development. The commitment to

social justice has gained strength in the country and it is desirable

that active efforts may be made afresh to secure social, economic

and political justice which is the objective of the Constitution. It is

felt that there are some provisions in the Act on account of which

disputes of avoidable nature arise and cases not only multiply, but

delay also takes place in their disposal. In this context, it appears to

be necessary that the Act should be reviewed and for the removal of

the existing vaguenss, and inconsistencies such amendments may

be made as are necessary and in conformity with current thinking of

the age and helpful in maintaining a balance between mutual right

and dealings of landlords

and tenants and further as are considered to be necessary in

the interest of doing justice to all the concerned parties in

equal measure. For achieving these objectives, the

recommendations embodies in this report are being made for

making extensive amendments in the Act.

The basic study paper for the report was prepared by Sri

Shiv Charan, Senior Research officer in the commission, who

has evinced his interest in, and understanding of, the subject.

The Commission has gone through the study paper and

carefully considered the matter itself and has also tried, as far

as possible within its resources, to get familiar with the ideas

of other knowledgeble persons connected with the subject

matter. Sri Shiv Prasad Agarwal, Member of the Commission,

has, from time to time, given valuable suggestions and has

made appreciable contribution. Sri Awadh Behari Hajela,

Menber of the Commission shouldered the onerous burden of

preparing the report and including in it at proper place, the

ideas, suggestions and decisions of the Commission and has

worked relentlessly with great devotion and zeal in completing

the report. It is on account of the perseverance of Sri Hajela

that the Commission is today in a position to submit this

report. All the other officers posted in the Commission have,

also, rendered adequate assistance.

On behalf of the Commission, I am submitting this report

containing the suggestions of the Commission for necessary

amendments in U.P. Act No. 13 of 1972 for consideration of

the Government.

Sincerely

(Srinath Sahay)

REPORT

CONTENTS

Chapter Topic Pages

1. Introduction 1 to 8

2. Operation of Act 9 to 12

3. Increase in rent 13 to 21

4. Regulation of letting 22 to 78

5. Simplification of

procedure 79 to 80

6. Summary of

recommendations 81 to 86

--

UTTAR PRADESH

URBAN BUILDINGS (REGULATION OF LETTING,

RENT AND EVICTION) ACT, 1972

(ACT NO. 13, 1972)

CHAPTER - 1

INTRODUCTION

CONCEPT: Tenancy! a bond between the owner and occupier for

the furtherance of the liberal disposition of the haves towards

the removal of the want in the havenots in the matter of

housing accommodation.

--2- 1.2 But such a charm of tenancy lasted only as long as it was acclaimed to

be a social trust. As soon as it was taken out from the domain of people's fancy to legal validity, it was fastened with various strings all around, here, there and everywhere. In the legislative field, the original concept of lease is manifested in the Transfer of Property Act, 1882 (Act No. 4 of 1882), in Sections 105 to 117, where the elements relating to mutual rights and liabilities of the parties as to duration determination and renewal thereof are defined and enacted. 1.3 This enacted measure remained workable for five decades, but the circumstances generated by the second World War brought about a turning point, whose full glimpse, along with its brief history, is available in the following 'Object and Reasons' laid down for Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the principal Act, 1972):

Reasons and objects "The United Provinces (Temporary) Control of Rent and of Act, 1972 Eviction Act, 1947, was passed as a temporary Act, with a view mainly to continuing in force provisions relating to control of letting and rent of accommodation similar to those contained in orders which had been issued under the Defence of India Rules, 1939. It was expected that the situation of shortage of accommodation would be tided over after a short period, and accordingly an Ordinance was promulgated in 1947. In view, however, of the continuing increase in the urban population and the relatively slow pace of house-building activity, due, mainly, to shortage of materials the problem of shortage of accommodation has become chronic, and the life of the Act has had to be extended from time to time. Various amendments were also made in its provisions as and when problems arose. Some of the provisions attracted criticism on various grounds in courts of law and also criticism by informe

-3-

public opinion. Government gave an assurance to the Legislature that they would soon replace the Act by a new comprehensive legislation, and, accordingly, this bill has been prepared.

Salient features 1.4 Mention of the salient features of the Bill pertaining to the principal

of the Bill : Act, 1972, is, also, necessary, so that the difficulties of legal procedure and circumstantial handicaps, which have, from time to time, clogged the realization of the object and which need redressal measures, can be assessed. They are as follows :

(1) It is proposed to make the new law a permanent one instead of a temporary measure.

(2) Instead of fixing a particular date and applying the law only to buildings constructed till the date it is proposed, the new law shall apply to all buildings after a period of 10 years from the date of completion of their construction. Thus the number of buildings that will be brought under regulation shall be rising progressively as time passes. Ten-year holiday from regulation is being provided to give incentive for construction of new buildings.

(3) Under section 3 of the old Act the powers of the District Magistrate in the matter of grant of premission for institution a suit for eviction of a tenant were not defined and he had an unfettered discretion to allow eviction on any ground whatsoever. The grounds on which such eviction of a sitting tenant may be permitted or release of a vacant building allowed, have now been restricted. further in order to reduce multiplicity of proceedings and also to reduce the congestion in civil courts it has been provided that proceedings for eviction shall lie before the prescribed authority instead of in the civil court.

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(4) The provision for revision to the State Government against allotment and release orders and orders of eviction of unauthorised occupants has been omitted. Instead, appeals against allotment orders and orders of release of vacant buildings that may be passed by the District Magistrate or his delegate shall lie to the Commissioner and appeals against orders of the District Magistrate or his delegate determining or refixing rent and orders of the prescribed authority in release proceedings against sitting tenants shall lie to the District Judge, and the decision of the Commissione or the District Judge shall be final.

(5) Suits for eviction on the grounds specified in section 3 of the old Act which lay in the Courts of Munsif or Civil Judge, shall now lie in the courts of Small Causes. This will do away with the multiplicity of appeals, as only a revision will lie against the decision of the Small causes Court as in other small cause cases. Further, out of the grounds specified in the old Act, some have been modified. As it appears that allegations of causing a nuisance were sometimes made for creating a fictitious ground of eviction, this ground has been omitted. Moreover, mere making of material alteration will not be a valid ground of eviction and only structural alterations in the building will form such ground. (6) Buildings held by educational institutions or charitable societies or buildings built & held by co-operative societies, companies and firms for their own occupation or for the occupation of their empliyees, etc. ,shall be exempt from the operation of the new law. (7) Certain provisions have been made with a view to ensuring that buildings are not deliberately got under- assessed, and the local authorities get their due share of taxes according to the correct letting value. Re-fixation of rent on the application of the tenant is also being provided for in such cases.

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(8) Suits for eviction pending against tenants of buildings

brought under regulation for the first time shall not be

decreed and decrees for eviction already obtained shall

not be executed except on specified grounds.

(9) After the death of the tenant the surviving members of

his family shall be entitled to the same protection as

the deceased.

(10) In the case of such repairs, as are essential to keep a

building wing-proof and water-proof the tenant is being

allowed to deduct two months' rent instead of one

months' rent.

(11) The tenant's liability to pay enhanced house tax is being

reduced from one-third of the amount of enhancement

to one-fourth thereof.

(12) The provisions regarding allotment, maintenance of the

building in wing-proof and water-proof condition and of

amenities attached to it, and deposit of rent in Court in

certain circumstances have been retained, and certain

loopholes in the various provisions have been sought to

be plugged.

Various amending 1.5 Date of commencement of the principal Act, 1972 is 15

Acts : July, 1972. Thereafter, eight amendments were made

therein, as tabled hereunder :

-6- Table No. 1

Sl. No. Act No. Date of the Act Date of the publication in the

Gazette

Date of Commencement

1 2 3 4 5 1. 2. 3. 4. 5. 6. 7. 8.

37/92 19/73 19/74 30/74 28/76 17/85 11/88 05/95

Date of assent of the President 12 September, 1972 19 October, 1973 Date of assent of the Governor 18 July, 1974 Date of assent of the President 28 September, 1974 Date of assent of the President 01 July, 1976 Date of assent of the Governor 20 August, 1985 Date of assent of the Governor 13 May, 1988 Date of assent of the Governor 15 February, 1995

16 September, 1972 19 October, 1973 20 July, 1974 30 September, 1974 05 July, 1976 21 August, 1985 13 May, 1988 17 February, 1995

20 September, 1972 (Notification No. 4111(i) VII-Ka- 580-72, dated 20 September, 1972) Section 5 and Section 6- dated 15 July, 1972 Section 7- dated 20 October, 1972 01 September, 1974 (Notification No. 2803/XXIX-E-59-72, dated 29 August, 1974) 15 July, 1972 05 July, 1976 (Notification No. 3117/XVII/V-1-55/76) Section 2 clause (A) and clause (B) (II) and Section 4, Section 5, dated 18 May, 1983 Section 3, dated 05 January, 1985. Section 2 clause B(i), dated 26 April, 1985. Remaining Provisions with immediate effect. 13 May, 1988 26 September, 1994

-7- Objects of the 1.6 All the above amending Acts aimed at fulfilling the amending Acts : following objects:

(1) Incentive for construction of new buildings, (2) Balancing of interests of landlord and tenant, (3) Simplification of procedure, (4) Exemption of buildings of the Government, local authorities, public educational and religious institutions, cantonment board and Industry, entertainment/amusement and co-operative societies, and (5) Protection of the interest of low-income-tenants. 1.7 Even after so numerous and vast amendments, the expectations pinned from the practical point of view, to the objects are not being fulfilled. On a scrutiny of the amended principal Act, 1972 it transpires that many provisions have become obsolete and it is neccessary to substitute the new provisions in their place. In this background, the state Law Commission has undertaken this Work-Project on its own.

Acts of the 1.8 In support of the proposed suggestions, apart from other States : the decisions of the Supreme Court and High Courts, the provisions of underneath corresponding Acts in force in various State have, also, been studied (hereinafter referred to by the name of the State and Year of the Act) :

(1) Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act No. 15 of 1960. (2) Assam Urban Areas Rent Control Act No. 17 of 1972. (3) Orissa House Rent Control Act No. 4 of 1968. (4) Kerala Buildings (Lease and Rent Control) Act No. 2 of 1965. (5) Goa, Daman and Diu Buildings ( Lease, Rent and Eviction) Control Act No. 2 of 1969. (6) Jammu & Kashmir Houses and Shops Rent Control Act No. 39 of 1966.

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(7) Tamilnadu Buildings ( Lease and Rent Control ) Act,

1960.

(8) Tripura Buildings (Lease and Rent Control) Act, No. 5 of

1967.

(9) Dehli Rent Act No. 33 of 1995.

(10) West Bengal Premises Tenancy Act No. 12 of 1956.

(11) Pondichery Buildings (Lease and Rent Control) Act No.

5 of 1969.

(12) East Punjab Urban Rent Restriction Act No. 3 of 1949.

(13) Bombay Rents, Hotel and Lodging House Rates Control

Act No. 57 of 1947.

(14) Bihar Buildings (Lease, Rent and Eviction) Control Act

No. 4 of 1983.

(15) Madhya Pradesh Accommodation Control Act No. 41

of 1961.

(16) Meghalaye Urban Areas Rent Control Act, 1972.

(17) Mysore Rent Control Act No. 22 of 1961.

(18) Rajasthan Premises (Control of Rent and Eviction) Act

No. 17 of 1950.

(19) Haryana Urban (Control of Rent and Eviction) Act No.

11 of 1973.

(20) Himanchal Pradesh Urban Rent Control Act No. 25 of

1987.

Exemption :

Purposelessness of the present period :

-9-

Chapter-2

Enforcement of the Act

2.1 The solution to a very important bifocal problem appears in para 2 of the salient features mentioned in the Introduction. On the one hand, there was the connected with the fundamental 'right to life' -how to provide roof overhead-to the low income backward families and , on the other, the question was how to stem the circumstances obstructing the progress of new construction of the houses. For both ends to meet, a bilateral balanced idea was needed. That is why , instead of enforcing the principal Act, 1972 at once on every building of the specified area, the following provisions were made in section 2(2) :- (2) Expect as provided in sub-section (5) of Section 12, sub-section (1-A) of Section 21, sub-section (2) of Section 24, Sections 24-A, 24-B, 24-C or sub- section (3) of Section 29, nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed : Provided that where any building is construction substantially out of funds obtained by way of loan or advance from the State Government or the life Insurance Corporation of India or a bank or a co-operative socity or the Uttar Pradesh Avam Evam Vikas Parishad, and the period of repayment of such loan or advance exceeds the aforsaid period of ten years, then the reference in this sub-section to the period of ten years shall be deemed to be a reference to the period of fifteen years or the period ending with the date of actual repayment of such loan or advance (Including interest), whichever is shorter : Provided further that where construction of a building is completed on or after April 26, 1985 then the reference in this sub-section to the period of ten years shall be deemed to be a reference to a period of forty years from the date on which its construction is completed. 2.2 Clearly, the general provision made under section 2(2) is that nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed. This proposition has become meaningless on account of the provision of the second

Suggestion:

-10- proviso, because if the construction of any building has been completed before 26 April, 1985, then, in any case, the 10 year period would expire in April, 1995. Therefore, the provision of the second proviso is, in fact, effective. That is to say where the construction of any building is completed on 26 April, 1985 or thereafter, nothing in the Act would apply during a period of 40 years from the date on which it is completed. As such it would be proper to render this provision unto an original one. In other words, such a provision shal have to be made in Section 2(2) itself that nothing in this Act shal apply to a building, the construction of which has been completed on 26 April, 1985 or thereafter, during a period of 40 years from the date on which its construction is completed. And the existing second proviso is to be deleted. 2.3 Specific provision has been made in the first proviso to Section 2(2) regarding a building, the construction of which has been made substantially out of funds obtained by way of loan or advance from the Government or life Insurance corporation of India or a bank or a co-operative socity or U.P. Awas Evam Vikas Parishad. This distinctive provision has been made as an execption to the basic provision and to implement it the period of construction and repayment of loan-two types conditions-have been adopted as a norm. According to the present provision, if the period of repayment of loan or advance is less than 15 years and more than 10 years, then nothing in the Act shal apply, during the whole of such period, to the building from the such period, to the building from the date of construction. But if the period of repayment of loan in more than 15 years, then nothing in the Act shall apply at the end of 15 years from the date of construction. There is no reasonable basis for fixing such a period of 15 years and there is also no propriety for the discriminatory position,

Suggestion :

-11- which-results therefrom, Moerover a provision like this hits the 'right to equality' and rule of reasonable classification as implicit in Article 14 of the constitution. Therefore it seems proper that a provision be made only to the effect that nothing in the Act shall apply to a building during tha period computed from the date of construction up-to the end of the expiry of the period of repayment of loan or advance. As a result of such type of provision, it will be, further, necessary to provide that where the construction of a building has been made out of the funds received by way of loan or advance and has, also, been completed on 26 April, 1985 or there-after, then nothing in the Act shall apply during a period of 40 years from the date of its construction or period of repayment of loan whichever is later. It will be necessary to make this provision for the reason that a situation may arise when there will be an inconsistency between the period of 40 years from the date of construction and the period fixed for repayment of loan. If the construction of any building has been completed befor 26 April, 1985 and period of repayment of loan has ended before that date, no problem is to arise in that situation, because provisions of the Act shall be, automatically applicable. If the construction of building has been completed on 26 April, 1985 or thereafter and the period of repayment of loan has come to an end before the date of expiry of period of 40 years, then also no problem shall arise, because the Act will not apply for a period of 40 years from the date of construction and will be applicable only thereafter. The problem will crop up only when the construction of building is completed on 20 April, 1985 or thereafter and the period of repayment of loan or advance ends after the expiry of a period of 40 years from the date of construction of that building. Therefore for removal of this problem, it would be necessary to provide that the Act shall not apply during the period of 40 years of construction or repayment of loan, whichever expires later

lq>ko %

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A situation may further arise to the effect that the construction of any

building is completed before 26 April, 1985 and the period of

repayment of loan or advance expires 10 years after the date of

completion of the construction, then, in that case too, the provision

to apply will be that nothing in this Act shall apply to such building

during a period of 10 years from the date of its construction or during

the period of repayment of loan of advance, whichever is later.

2.4 Again in view of the aims and object of the Act and keeping in

view the laudable object of religious places like the birth places of

lord Rama and Krishna and other charitable institutions, buildings

belonging to, or vested in, a public charitable or public religious

institutions, were exempted from the purview of the principle Act,

1972 by the insertion of clause (bb) in sub-section (1) of Section 2 of

the original Act, 1972 through the U.P. Amend-ment Act No. 5 of

1995. Section 9 A, which was inserted by the U.P. Amend-ment Act

No. 28 of 1976, is relatable to revision of rent of the commercial

buildings let out by public charitable or public religious institutions. If

the buildings belonging to, or vested in, the public charitable or public

religious institutions are exempted from the purview of the original

Act by the abovementioned Amendment Act No. 5 of 1995, then the

question of revision of the rent of such buildings does not arise

wheather they are residential or are suitable for commercial purpose.

Therefore, Section 9-A has no utility and is liable to be repealed.

Repeal of Section 9-A :

Suggestion :

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Chapter -3

Payable Rent of the Buildings

3.1 In relation to the payable rent of the buildings, section 5 of the pricipal Act, 1972 is worth mention :- "In the case of a tenancy continuing from before the commencement of this Act, in respect of a building to which the old Act was applicable, the landlord may, by notice in writing given within three months from the commencement of this Act, enhance the rent payable therefor to an amount not exceeding the standard rent, and the rent so enhanced shall be payable from the commencement of this Act." 3.2 Obviously this section was effective only for three months after the coming into force, on 15 July, 1972 of the principal Act, 1972 and during that period alone the landlord could increase, by notice in writing, the amount of rent payable for his building. Now there is no purpose of this section and it need be omitted for substitution by a new section. 3.3 It would not be irrelevant to say that prices are continuously increasing. Value of the rupee is declining and stability in the rent is against the Canons of Economics, since value of money and rent should be consistent and compatible. Apart from section 5 of the principal Act, provisions for increase of rent are avialable in section 6, 7, 8, 9-A and 10. Section 5 and 9-A have been discussed above. Under section 6, if the landlord, after commencement of the Act, has made any improvement in the building with the consent of the tenant or in pursuance of any requirment of law, then there is provision for increase in the amount of monthly rent after notice to the

Increase in Rent :

Ommision of Section 5 :

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tenant. Under section 7, water-tax and house-tax have, also, been made

part of the rent if the rent is more than Rs. 25/- per month. Power to

resolve dispute relating to the amount etc. of the standard rent has been

given to the District Magistrate under section 8 and section 9 is

concerned with the determination of standard rent. Under section 10,

there is provision for appeal against order passed under section 8, 9, or

9-A. In this way, there is no provision under the original Act for

automatic revision of rent. There is provision under section 9, read

with section 10, of the Delhi Rent Act No. 33 of 1995 about

increase/decrese of the rent only when any change or modification has

been made in the building or there has occurred some deficiency

therein. There are similar provisions in the Acts of other States also

and provisions of automatic increase in the rent are not available

therein also- it becoming clear from the Table No. 2

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Table No. 2

S.N. Act Circumstances for increase in Rent Section Percentage and other grounds

1 2 3 4 5

1. 2. 3. 4. 5.

Andhra Pradesh Act, 1960 Assam Act, 1972 Orissa Act, 1967 Kerala Act, 1965 Goa, Daman and Deu Act, 1968

(i) Addition, improvement or alteration in the building-on the application of the tenant. (ii) Increase in taxes or cesses related to the building by local authority. (i) More than 25% increase in the value of the land and cost of construction of building. (ii) Addition, improvement and alteration in building. (iii) Increase in determination of rent of buildings. (i) Addition, improvement or alteration in building. (ii) Increase in determination of rent and increase in value of houses and house sites (i) addition, improvement or alteration in building. (ii) Increase in taxes or cesses related to building by local authority (i) addition, improvement or alteration in building (ii) Increase in taxes or cesses ralated to building by lacal authority.

5 6

3(2)

3(3)

3(4)

9(1)

9(2) 6 7

13(i)

14(i)

rate per annum 6% of the rent (maximum upto 6% of the cost) 50% of the increase Increase in monthly rent-1/12th part of 7.5% of the increase in price of land and cost of construction of building. -1/12th part of 75% of the cost of addition, improvment and alteration. accordingly determined standard rent. Maximum upto 7.5% per annum cost of addition, improvement or alteration. Controller's discretion estimated reasonable rent of similar building in that area Maximum upto 5% of original reasonable rent 7.5% per annum of the maximum cost. 50% of the Increase

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1 2 3 4 5

6. 7. 8. 9. 10. 11. 12.

Jammu & Kashmir Act, 1966 Tamilnadu Act 1960 Tripura Act, 1975 Delhi Act, 1956 West Bengal Act 1956 Pondichery Act 1969 East Punjab Act 1949

(i) Increase in taxes or cesses by municipal corporation. (ii) Addition, improvement or alteration in building (iii) On supplying furniture by the landlord. Increase in taxes or cesses by local authority (i) addition, improment or alteration in buiding (ii) Increase in taxes or cesses by local authority (iii) Increase in market value of the building Improvement, addition and structural alteration in building (i) Increase of taxes and rates by municipal corporation (ii) Structural alteration in premises (iii) Increase in market value of the building. Addition, improvement or alteration in building

-do-

8(b)

8(c)

8(d)

6(i)

6(1)

7(i)

8(i)

9(i)

9(a)

9(b)

11 6 5

Increase-more than agreement 10% of the cost, in one year 10% of the cost, in one year Difference (previous rent and present rent) At the discretion of Court or upto the maximum fair rent of the similar type of building in the same area. 5% of the maximum original fair rent per annum 5% of the maximum difference 10% of increase in one year 50% of increase in one year 10% of expenditure of one year rent Maximum 2.5% of difference of annual rent According to the discretion of the controller, but not more than fair rent of the similar building in that area.

-do-

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1 2 3 4 5

13. 14. 15. 16.

Bombay Act, 1947 Bihar Act, 1982 Madhya Pradesh Act, 1961 Meghalaya Act 1972

(i) with consent of the landlord Structural alteration in building (ii) On providing special increase or special change or additional facilities in the building. (iii) On necessary special of heavy repairing. (iv) Increase in new taxes/ cesses or taxes/cesses by government or local authority. addition, improvement or alteration in building improvement, addition or alteration in accommodation. (i) Market price of land and extimated cost of construction has increased more than 25% during last five years (ii) Addition, improvement and alteration in the house (iii) Increase in tax determination by municipal corporation

9

9(2)

9(3)(a)

10 7

8(i)

3(2)

3(3)

3(4)

Reasonable increase

15% per annum of the maximum expenditure Not more than 18% of the standard rent until the amount of expenditure is realised. Not more than new or increased amounts of taxes cesses. 5/8th percent per month of the maximum cost. At 10% annual rate of the maximum rent. 1/12th part of 7.5 of increase (50% of the maximum rent) 1/12th part per month of 7.5 of the cost At the discretion -keeping in view of the increase

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1 2 3 4 5

17. 18. 19. 20.

Mysore Act, 1961 Rajasthan Act 1950 Haryane Act 1973 Himanchal Pradesh Act, 1987

(i) Addition, improvement or structural alteration in building (ii) Increase in taxes or cesses related to the building by local authority (i) Improvement in premeses through structural alteration (ii) If the tenant has raises some portion of the building to sub-tenant (i) Addition, improvement or alteration in building (ii) Increase in taxes, cesses ralated to the building by lacal authority (i) Addition, improvement or alteration in building (ii)Increase in rate, tax or cess related to the building by local authority.

16(1)

17

10(i)

10(ii)

5(i)

8(i) 6

10

6% per year of the maximum cost Centpercent of the increase. Annual 7.5% of the cost-maximum Residential and others- 12.5% maximum of the rent. In other cases-maximum 25% of the rent. ground not indicated- as per discretion Maximum-upto the limit of the increase Not more than fair rent of similar building in the same area. Maximum-upto the limit of increase in rent etc.

Period of

Interval :

Suggestion :

-19- 3.4 As a result of the deliberation and discussion, this view of the State law Commission, that the measure of automotic increase in the rent be enacted, has already been accepted, as a principle, in Section-5. It would not be irrelevant to mention that if the existing circumstances bear out the increase in rent, then the Court can, also, give an order for increase in the rate of rent. (R. Appa vs. Dharan Vinayakan Dharmaraja Devasthanam, 1991 Supp (2) SCC-337). Therefore, there is every justification for automatic increase in rent by legislation. 3.5 In this connection, it would be necessary to consider the following points: 1. When can the increase in rent be made? 2. What should be the percentage for regidential and commercial buildings? 3. What should be the procedure? 4. What should be the existing rent? 5. Whether the increase in water-tax and house-tax be added or not? 6. What should be the provission for the tenanted buildings, which complete the period of interval on the date of enforcement of the proposed amending Act? 3.6 In the opinion of the Commission, the landlord should have a right to increase, in accordance with the prescribed procedure, rent after five years of the advent of tenancy and, again, to increase rent likewise rent likewise at the interval of every five years. If such amendment is made in the principal Act and the period of five years, from the date of bigining of the tenancy, is complete before the date of commencement of the amending Act, then during a specified period from such date, like six months, the

Percentage of increase Saggestion Right to increase Suggestion

-20-

right to increase rent, for the first time, be given under the amendment Act. It is notable that under. Section 9-A(3) of the principal Act, a period of five years in relation to increase in rent has been provided. 3.7 As far as the question of percentage of increase is concerned, the residential and commercial buildings will have to be kept apart. A tendency has been marked amongst the landlords that agreement in writing be obtained from their tenants about increase in rent of 10-15 percect per year. Percentage of such increase, as it is, during five years is 50% or 75%. This is against the interest of tenants. One alternative is that the automatic increase be tagged to the ratio of price index or inflation. The difficulty in acceptiong such an alternative is that the awareness of such indices to the people at larg is not very timely and that colculations of such indices be disputed between landlord and tenant and become a cause of litigation. Therefore, it appears proper from the view point of certainity that the percentage should be fixed. It would not be irrelevant to settle it at 10% for residential buildings and 15% for commercial buildings. 3.8 The right to make or not to make the quin-quennial increase in rent should belong to the landlord alone and should be as such. If he so desires, he can decline such increase suo motu or through written contract with the tenant or can decrease/increase the period of interval fixed for such increase. Again, if the landlord and the tenant fix the rate of rent by agreement, there could, never, be any necessity for settlement of reasonable rent. (Mohit Lal Vs. Rekharani, 1994 Supp. (1) SCC 467).

Notice for increase Suggestion Amendment in Section 21 (8) and omission of its provisos Suggestion

-21-

3.9 In this connection, it would be fair to expect from the landlord that in case of making any increase in rent, he should send a registered notice to the tenant within three months from the date of expiry of the period of five years and demand after adding the percentage of increase, the revised rent from the said date. In that notice, the amount of existing rent be, also, mentioned and that amount be the same, which was payable to the landlord by the tenant on the date of giving notice. Dues pertaining to water-tax and house-tax should not be included in the amount of such existing rent. 3.10 In the light of the above mentioned analysis, both the provisos of sub-section 8 of Section 21 of the principal Act, 1972, become useless. In the two provisos, provision has been made about the increase in rental amount in cases where the State Government oralocal authority or public sector corporation or recognised educational institution is a tenant. Because the proposed amendment shall be applicable to the buildings of all types of landlords, it would not be proper, in any way, to continue both the provios of Section 21(8) in any corresponding provision of S 20. In the same way, it will be necessary to omit words and figures "or section 9-A" from Section 10, because upon repeal of original Section 9-A, no question arises either to pass any order under that section or to appeal as has been provided for under Section 10. Again, clauses (ii) and (iv) OF the Explanation to sub-section (1) of Section 21 had been deleted by U.P. Act No. 28. of 1976. Therefore, the words "unless the Prescribed Authority is satisfied that the landlord is a person whom clause (II) or caluse (IV) of the Explanation to sub-section (1) is applicable" is to be deleted from sub-section (8) of Section 21, and rest to be incorporated in corresponding provision of Section 20.

Cause of discard

-22-

Chapter-4 Regulation of Eviction

4.1 The discord in mutual cordial relations of landlord and tenant

begins, when the landlord wants to evict the tenant from his house and

the tenant protests against such eviction. Both have their distinct

constraints. No doubt, the landlord is the owner of the rented building. It

is his property and he has a right to enjoy his property of ownership.

When, on account of some exigency, he sifts ownership from enjoyment

by letting out his building, even-then his strong desire and expectation

are that his property remains intact despite other's possession, that no

substantial damage be caused thereto and that no construction or

material alteration diminishing its value or utility be made therein. He,

also, whishes that the tenant uses his building neither for illegal or

immoral purpose nor for the purpose other than the agreed one. He will,

also, not like a sub-tenant and he will, never, relish that the tenant denies

his title, The landlord bears much more like expectations from the tenant

and one of them is that the tenant pays the rent in time. If the tenant

commits default or mistake of any type, the landlord gets ready to

ensure that he evicts the tenant from the building. Sometimes even in the

absence of such acts/ omission, the landlord stands in genuine need of

the rented building for his own purpose and, in that case too, he wants to

evict the tenant, for which he has to make resort to any court/ tribunal/

authority.

4.2 The tenant has his own compulsions, his low income, ailments

and diseases and adversity, so conspire as to disable him form making

payment of rent in time.

Propriety of amalgamation of provision of Section 20 and Section 21 :

-23-

Sometimes to make the building comforatable, a bit of construction-

work need be undertaken therein. He has to abide by some such other

circumstances, which do not conform to the wishes of the landlord.

When such a tenant, countered with difficult and compelling

circumstances, becomes aware of the scourge of ejectment, he oppeses

tooth and nail and gets prepared to contest, whether such battle ground

is in the court or in the tribunal or before any authority.

4.3 It will not be improper to recall that balancing the interests of

landlord and tenant has been the object of different Acts connected with

regulation of tenancy. In Arjun Khiamal Makhijani Vs. Jamnadas C.

Tulyani (1989) 4 SCC-612) also it has been ruled by the Supreme Court

that in a rent control legislation normally the interest of the tenant is

envisaged. Its provisions aim at his benifit but, in such legislation, if any

provision is for the benefit of landlord, then it would not be proper to

construe it in favour of tenant. It will not be irrelevant to say that before

the enactment of laws connected with the regulation of rent and eviction,

landlords used to exercise their right, which were available to them, in

such a way that, as a result thereof, there used to be harassment and

expleitation of the tenants and residential problem in much populated

cities was becoming serious. To chek it proper provisions were made

first through orders issued under the Defence of India Rules, 1939 and,

then, through the U.P. Act No. 3 of 1947 and there-after through Act

No. 13 of 1972.

Difficulty owing to separation of Section 20 and Section 21 :

-24-

4.4 The provisions ralating to eviction of tenant have been given in

Section 20 and Section 21 of the principal Act. It is provided in Section

20 that a suit for the eviction of a tenant from a building, after the

determination of his tenancy, may be instituted only on the grounds,

which have been mentioned in sub-section (2) of Section 20. No suit can

be instituted on a ground other than that. The provisions relating to the

proceedings for release of building under occupation of tenant are in

section 21. Mainly the proceedings, under section 21, can commence on

two grounds, i.e. (1) when the house is bonafide required by the landlord

for his own occupation, and (2) when the house is in a dilapidated

condition and is required for purposes of demolition and new

construction. The object of proceedings under section 21, is, indirectly,

the eviction of tenant.

4.5 Not eithstanding the object of Section 20 and Section 21 being

the eviction of tenant, provisions of both differ as to procedure and

result. Owing to the provision for suit in Section 20, it is obligatory to

follow the entire procedure, which is prescribed in general law for the

disposal of a suit. In other words, the landlord has to follow the whole

procedure in continuation of the suit upto the courts of appeal and

revision and the Supreme Court, and if the suit is decided in favour of

the landlord, the same procedure has to be complied with again for the

execution of the decree. The tenant has, also, to become convenience, in

the final decision of the suit and execution of the decree.

Suggestion :

-25-

4.6 Even after the passing of decree for the eviction of tenant, it is not sure that

the landlord gets actual possession of the house. If the landlord wishes that after the

eviction of tenant, he gets the opportunity of using the house himself, it is necessary

for him that the provisions given in the Act for the release of the house are complied

with and allotment of the house in favour of any other person is resisted. The

landlord, after the eviction of tenant, can get the house released in his favour only

after obtaining proper order under Section 21, the house can be got released only after

moving an application and then, in consequance, the tenant can be evicted. For the

purpose of Section 21, it is, also, not necessary that proceedings are started only after

formal termination of tenancy. When the objects of Section 20 and Section 21 are the

same, there appears no justification that provision for separate procedure is made for

purposes of the two Sections. And the more so, when one Section alone provides for

such a procedure, which be complicated by itself and which be labour-prone,

expenditure-prone and excessively dilatory for the parties concerned- matter not he be

landlord or tenant. Indirectly, Section 20 affords, also, an opportunity to one party so

as to obstruct the cause of justice many a time according to his own whims. In sum

and substance, the object of Section 20 and Section 21 is only this much that the

eviction of tenant may not be uncontrolled, instead, it be founded on any ground as

settled by law. In this background, it will not be an idle thinking that the separate

existence of Section 20 and 21, be abolished and only in one Section all those reasons

and grounds be incorporated, which are sufficient, from the point of view of equity

and justice, for the eviction of tenant. The related procedure need be, also, simplified.

What is to be ensured is that whatever procedure is made applicable, there should be

no difficulty to either party in getting justice therefrom and there should be

consumption of less time

Supreme Court's Vertict

a-26-

and less expenditure therein and no party to misuse it. With reference to this, it is to kept in mind that whatever Acts have been passed ralating to regulation of rent and eviction, their main object is to safeguard the interest of tenant. If provision is made keeping this fundamental object in mind and efforts are made to balance the rights of both, landlord and tenant, then, probably, there shall be no possibility of any injustice or harassment to any party. 4.7 In Keshav Ram and Company Vs Union of India (1989) 3 SCC-151, para 12, the Supreme Court has done an extensive discussion of the object of Acts relation to tenancy and eviction, which it would be relevant to quote here. The Supreme Court held : "The paramount object of the Act, like any other rent control legislation, is to safeguard the interest of tenants against their exploitation by landlords. After the Second World War there has been movement of population from rural areas to urban areas as a result of which the problem of accommodation became acute in cities. Landlords of the buildings took full advantage of the situation and they cahrged exorbitant rent from tenants and very often evicted them by terminating tenancy under the provisions of Transfer of Property Act. The tenants were helpless as the suits, once filed by the landlord after terminationg the tenancy, were bound to succeed. The legislature of different States took cognizance of the situation and enacted rent control legislations providing safeguards for tenants by making provision for fixation of reasonable rent and also placing restrictions on the landlords, right to evict tenants.

Amalgamation of both typesof

provisions in Acts of

other State's:

-27-

Generally rent control legislation of various States exclude the

jurisdiction of civil courts to entertain a suit or pass a decree of eviction

against a tenant; instead the jurisdiction to evict a tenant is conferred on

Rent Controller or some deignated authority and the statutory grounds for

eviction of a tenant have been laid down. The multiple restrictions placed

on the landlords' right to charge rent from tenants or to evict them from

buildings resulted in shortage of accommodation because those who had

money and capacity to build new houses were discourage from investing

money in constructing buildings on account of the restrictions placed by

rent control legislations. These steps were taken to meet the acute

scarcity of accommodation and to encourage landlords to construct

building which would ultimately ease the situation of shortage of

accommodation to a large extent. Provisions for exempting the newly

constructed buildings which would ultimately ease the situation of

shortage of accommodation to a large extent. Provisions for exempting

the newly constructed buildings form the restrictions of the rent control

legislations for a limited period have been enacted by the Punjab, Uttar

Pradesh, Haryana and Madhya Pradesh Legislatures.

4.8 In the Acts of other States relating to control of rent and eviction

also there is amalgamation of such provisions, which are available

separately under Section 20 and Section 21 of the principal Act, 1972 of

Uttar Pradesh. This position is clear form the following Table No. 3.

-28-

Table No.3

S.N. Name of the Act

Section For whose benefit Grounds of genuine recessity

Order of the Government local body/ Improvement trust etc.

Acceptance of the map etc. and economic capacity

1 2 3 4 5 6 7 1.

Andhra Pradesh Act, 1960

10(3) and 12(1)

The landlord himself Residential purpose/Business/ repairs and alteration/ demolition/ erection of new building

-

-

2. Assam Act, 1972

5(1)(c) The landlord himself/ other beneficiaries

Residential purpose/ repairs or reconstruction

-

-

3. Orissa Act, 1967

7(4) The landlord himself/family members/ other beneficiaries

His own- occupation or use

-

-

4. Kerala Act, 1965

11(3) and (4) (iv)

The landlord himself/ members of his family

Residential purpose/ profession, trade and calling

-

Provision is there

5. Jammu & Kashmir 1966

Sub- Clause (h) of proviso of section 11(1)

The landlord himself/ other beneficiaries

-do-

-

-

6. Tamilnadu Act, 1960

10(3) The landlord himself/members of the family

Residential purpose/ profession, trade and calling

-

-

7. Tripura Act, 1975

12(3) and 12 (4)(iv)

-do-

Residential purpose/ repairs or reconstruction

-

Provision is there

8. Delhi Act, 1995 22(2) e,f,g,h and r

The landlord himself/ members of the family/ other beneficiaries

Residential purpose/demolition/ repairs or reconstruction

-

-do-

-29- 1 2 3 4 5 6 7

9. 10 11 12 13 14 15 16 17 18

West Bengal Act, 1956 East Punjab Act, 1949 Bombay Act, 1947 Bihar Act, 1982 Madhya Pradesh Act, 1961 Meghalaya Act, 1972 Mysore Act, 1961 Rajasthan Act, 1950 Haryana Act, 1973 Himachal Pradesh Act, 1987

13(1) (f) and (ff) 13(3) 13(1)(g) (h),(hh), (hhh) 11(1) (c) 12(1) (h), 23-A(a) 5(1) (c) 21(1)(h),(i) (j),(k) 13(1)(h)(k) 13(3)(a) and (c) 14(3)

The landlord himself/ other beneficiaries The landlord himself The landlord himself/other beneficiaries

-do-

The landlord himself/ members of the family/ other beneficiaries The landlord himself/ other benificiaries -d0- The landlord himself/ members of the family/ other beneficiaries The landlord himself/ son The landlord himself

Regidential purpose/ repairs or reconstruction Regidential purpose/ profession, trade and calling Regidential purpose/ repairs or reconstruction/ for the object of the trust Residential purpose/ repairs Residential purpose/ profession, trade and calling/ repairs or reconstruction Regidential purpose/ repairs or reconstruction or any other satisfactory reason. Regidential purpose/ demolition/ repairs or reconstruction/ for the object of the trust Regidential purpose/ demolition/ repairs or reconstruction Residential purpose/ son's profession -do-

-

Provision is there

-do- Provision is there

- -

Provision is there

Provision is there

-do-

-do-

- -

Provision is there

-

Provision is there -

- - - -

-30-

Abolition of the necessity to file suit for eviction :

4.9 It is worth mention that two types of precautions have

been taken in the Acts of different States regarding the

procedure. The one is that in the legal instrumentalaty which

has been constituted for the eviction of tenant, only the

judicial officer has been invested with rights his designation

not with standing. The other is that for eviction inevitability

of suit has been done away with, and provision has been

made to get requisite judicial assistance through application

only. This position is, also, evident from columns 3 and 4 of

table No.-4:

-31-

Table No. 4 S.N. Name of the Act,

1960 Authority passing the order of

eviction 9with section Application/ Suit (with

section)

1 2 3 4 1. Andhra Pradesh

Act, 1960 Controller ( any person not below

the rank of a Tahsildar) & section 2 (iv)

Application: Sections 10 (3) (a) and 10 (2)

2. Orissa Act, 1967 Controller (sub-divisional Judicial Magistrate)- section 2 (1)

Application: Section 7 (1)

3. Kerala Act, 1965 Rent Control Court ( Munsif) - sections 2 (5) and 3

Application: Section 11 (2) (a)

4. Goa, Daman and Diu Act, 1968

Aontroller (Any Authorised Officer can be appointed by the

Administrator ) - section 41(2)

Application: Section 22and Section 23


Controller (Any person appointed by the State Government) - section 2 (3)


6. Tripura Act, 1975 Rent Control Court (Munsif) - sections 2 (f) and 3

Application: Section 12

7. Delhi Act, 1995 Rent authority (judicial officer of ten years experience)- sections 2(f) and

43(i) and (ii)

Application: Section 22 (2) and 23, 24, 25, 26.

8. Pondicherry Act, 1969

Controller (any person appointed by the Government ) - section 2 (5)


-32-

1 2 3 4 9. East Punjab Act,

1949 Controller (any person appointed by the Government) - section 2(b)

Application: Section 13

10. Bombay Act, 1947 Court ( Judicial officer) - section 28 Suit : Section 13

11. Bihar Act, 1982 Court - section 2 (d) Suit: Section 11 12. Mysore Act, 1961 Court - section 3 (d) Application : Section 21

13. Haryana Act, 1973 Controller (any person appointed by the State Government ) section 2 (b) and subordinate judge under section 20 -A (a)

Application : Section 13

-33-

Suggestions Determination of tenancy and suit for eviction

4-10 On the basis of aforesaid analysis, conclusions by the

Commission are as follwows:-

1. The separate existence of Section 20 and Section 21 of the

principal Act be abolished and in its place only one section be kept in

which provisions of both the said sections be included with certain

modifications;

2. The jurisdiction of civil court relating to institution of suit

for the eviction of tenant be abolished; and

3. The entire procedure of suit for the eviction of tenant under

the ordinary law and of appeal, revision and execution etc. in regard

thereto be abolished and, in its place, a simplified procedure be laid,

the outlines of which have been given in the forthcoming paragraphs.

4.11 it is provided in Section 20(1) of the principal Act that

except in the manner given in sub-section (2) no suit shall be

instituted for the eviction of a tenant from any building,

notwithstanding the determination of his tenancy by efflux of time or

on the expiration of notice to quit or in any other manner. The

intention of this provisions is that no suit shall be instututed for the

eviction of a tenant from any building, and the judicial proceedings

for eviction can be commenced on specified grounds only. But it is

provided in the sub-section shall bar a suit for the eviction of a tenant

on the determination of his tenancy by efflux of time where the

tenancy for a fixed term was entered into by or in pursuance of a

compromise or adjustment arrived at

-34-

Suggestion Suggestion Notice for determination of tenancy Suggestion

With reference to a suit, appeal, revision or execution proceeding, which is either recorded in court or otherwise reduced to writing and signed by the tenant. When it has been accepted as a priciple that no suit shall be instituted for eviction, then there shall be no necessity for this provision. The provisions relating to eviction therein shall have to be incorporated in the continuation of specific reasons, so that it becomes clear that if any tenancy is in existence by or in pursuance of a compromise or adjustment with reference to a suit, appeal, revision or execution proceeding, and the tenancy has been determined by efflux of time, then the eviction of a tenant can be had through the presecribed procedure. In this connection, one, more precaution to be taken is that the compromise or adjustment, which has been mentioned in the proviso, is either recorded in court or otherwise reduced to writing and signed by the tenant. The record in court has its own proof but since there be no doubt or controversy about the compromise or adjustment otherwise reduced to writing and signed, it is necessary that its cetification by the public notary or any other public authority is made compulsory. Whatever the amended provison is entered, it would be proper to keep such a thing in mind. 4.12 In claused (a) to (f) of sub-section (2) of section 20 of the principal Act, 1972, those reasons have been specified on the ground of one or more of which a suit for the eviction of a tenant from any building can be instituted. It is, also, necessary before presenting such a suit that tenancy of the tenant is terminated. Accordingly, the procedure for termination of tenancy by way of giving notice under Section 106 of the Transfer of property Act, 1982, will have to be followed . It would be justifiable for simplification of the procedure that the necessity of giving notice ofr termination of tenancy

-35-

Default in making payment

be dispensed with. In the Orissa Act, 1967 the necessity of giving notice ofr termination of tenancy under Section 106 of the Transfer of Property Act, 1882, has been done away with. The principal Act, 1972, is a special Act and, according to Section 38, its provisons shall have effect, notwithstanding any inconsistent there-with contained in the Transfer of Property Act. Therefore, retaining of the necessity of giving notice of termination of tenancy under Section 106 of the Transfer of property Act can not be said to be unavoidable. Further, it is also worth mention that during litigation, many controversies between the parties in regard to the giving of notice of termination of tenancy and its delivery crop up. On abolishing the necessity of notice of termination of tenancy, there will be an end to such disputes also and the procedure would be simple. 4.13 In the ground specified in clause (a) of sub-section (2) of Section 20 of the principal Act, 1972, the following elements apear to be implicit: 1. The tenant should have been in arrears of rent for not less than four months, 2. The notice of demand about the arrears of rent should have been given to the tenant, 3. The service of notice of demand should have been made upon the tenant, and 4. The tenant should have committed defauld in payment of arrears of rent within one month of the service, upon him, of notice of demand. 4.14 In the Acts of other States also, there are like provisions, with some variations, as is clear from the following Table No. 5:

-36-

Table No. 5 S.N

. Name of the Act,

Period of due rent for the purpose of default in payment of the rent or tender (with Act and Section)

Necessity of notice

Period of saving from default in payment or tender

Statement of other amount to be included in the rent at the time of payment or tender

Adjustment of other dues in amount of rent

Interest Postal expenses

1 2 3 4 5 6 7 1. Andhra

Pradesh Act, 1960

Section 10 (2) (i) as due

No. Till 15 days from the date fixed in the agreement or in the absence of an agreement till last day of the next month

-

-

-

2. Assam Act 1972

Section 5(1) (e), legaly due

No. Within 15 days of the date on which it becomes due

-

-

-

3. Orissa Act, 1967

Section 7(2) (i), as due

No. Till 30 days from the date fixed in the agreement or in the absence of an agreement till day last of the next month

-

-

-

4. Kerala Act, 1965

Section 11 (2) (b), as due

Yes Within 15 days of the delivery of registered notice

6% of period of

the demand

Postal expenses

of the notice

-

5. Goa Act, 1968

Section 22 (2) (a), three month;s rent

Yes -

-

-

-

6. Jammu & Kashmir Act, 1966

(i) of proviso- of section 11(i), of two months

Yes Within 15 days of the delivery of registered notice

-

-

-

-37-

1 2 3 4 5 6 7 7. Tamilnadu

Act, 1960 Section 10 (2) (i) as due


-

-

-

8. Tripura Act, 1975

Section 12(2) (b), as due

Yes Within 15 days of the date on which it becomes due

6% of period of the demand

Postal expenses of the notice

-

9. Delhi Act, 1995

Section 22(2) (a), More than 2 months

Yes Within 2 month of the delivery of notice

demond 15% of period of the demond

-

-

10. West Bengal Act, 1956

Section 10 (i) 2 months or of fixed period

Yes Within one month of the delivery of notice (section 13 (6)

-

-

-

11. Pondicherry Act, 1969

Section 10(2)(i), as due

No Till 15 days from the date fixed in the agreement or in the absence of agreement till last day of the next month

-

-

-

12. East Punjab Act, 1949

Section 13( 2) (i), as due

No -do-

-

-

-

13 Bombay Act, 1947

Section 12(2), six months or more

Yes Within one month of the delivery of six months notice

-

-

-

14 Bihar Act, 1982

Section 11(i) (d), 2 months

No Due, according to the agreement or within next one month

-

-

-

-38-

1 2 3 4 5 6 7 15. Madhya

Pradesh Act, 1961

Section 12 (1) (a) as due


-

-

-

16. Meghalaya Act, 1972

Section 7(1) (e), as due

Yes Within 15 days of the date on which it becomes due

6% of period of the demand

Postal expenses of the notice

-

17. Mysore Act, 1961

Clause (a) of proviso of section 21 (1), as due

Yes Within 2 month of the delivery of notice

demond 15% of period of the demond

-

-

18. Rajasthan Act, 1950

Section 13 (1) (a), 6 months

Yes Within one month of the delivery of notice (section 13 (6)

-

-

-

19. haryana Act, 197

Section 13(2) (i), as due

No Till 15 days from the date fixed in the agreement or in the absence of agreement till last day of the next month

-

-

-

20. Himanchal Pradesh Act, 1987

Section 14( 2) (i), as due

No -do-

-

-

-

-39-

Notice for demand of rent : Inconsistency in Judicial decisions:

4.15 Under the existing provisions of Section 20(2) (a) of the principal Act, a suit for the eviction of tenant from a building, after the determination of his tenancy, may be instituted on the ground that the tenant is in arrears of rent for not less than four months and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand. Where the tenant is in arrears of rent for the specified period, it is incumbent upon the landlord to prove, for the maintainability of his suit for eviction that a notice of demand has been served upon the tenant and that the tenant has failed to pay the arrears to the landlord within one month from the date of service of the said notice. The provision of Section 20(2) (a) is, however, silent as regards the manner of service of notice of demand. There are no qualifying words given in English version and that would suggest that the service of notice upon the tenant may be either personal or constructive. In case of personal service, the date of service can be, easily, ascertained. But in case of constructive service, the date of service will be a matter to be concluded by presumption or by evidence, if any, addduced by the party. However, in the Hindi version of the Act, it is, specifically, provided that service of notice should be personal service. The words used in the Hindi version are Þ ekax ds uksfVl ds O;fDrxr rkehy gksus ds ,d eghus ds Hkhrjß

4.16 Apart from the conflicting provisons contained in the English and Hindi version of the Act, Judicial decisions on the point are, also, not consistent. In balloo Ram Book- seller V. Cheddi Lal, 1960, A.L.J. 3013 it was held by S.S. Dhawan, that only personal service on the tenant was contemplated. The reason for this view was stated to be that purpose of the notice was not only to inform the tenant that he is in arrears but is slao to give him an opportunity to save his

-40-

Facts:

tenancy. This view was overuled by the bench in jagat Narain Mehra V. Madan Lal, 1961 A.L.J. 442. In that case, it was held that refusal to receive notice is sufficient compliance with the aforesaid legal provison. Confirmation of the same priciple is apparent in Harchran Singh V. Shiv Rani ( 1981) 2 S. C. C. 535 . In Madan and Company Vs. Wazir jaibir Chand (1989) 1 S.C.C. 264, an exhaustive discussion and analysis have been made relating to the service of notice, parts of facts and decision wherof are worth being extracted: The petitioner is a firm of which Sohan Singh madan is the managing partner. The firm was the tenant of the respondent in respect of a portion of a building situated in raghunath Bazar, jammu, on a rent of Rs 200 p.m. According to the respondent, the petitioner had been irregular in paying the rent of the premises and had altogether stopped making payment of any rent from April 1, 1976 onwards. On Naovember 26, 1976, the respondent issued a notice to the petitioner calling upon it to pay the arrears of rent (Rs 1600). The notice also terminated the tenancy and called upon the petitioner to vacate the demised premises on or before December 31, 1976. This notice was first sent by post. The postman called at the address on December 7 ) 1976 and December 8, 1976 but, having failed to find there either the addressee or any person authorised to receive the notice on its behalf, returned it with the endorsement " left without address, returned to sender." Thereupon, the respondent caused a copy of the notice to be affized to one of the doors of the premises in question in the presence of two inhabitants of the locality on December 9, 1976. No payment of rent was made subsequently by the petitioner. The respondent, therefore, filed a suit on June 16, 1977 seeking ejectment of the petitioner on the ground that he had committed three defaults, each in payment of two months' rent, within a period of 18 months. This

-41-

Ruling on Service of the notice:

Plea was accepted, and eviction of the petitioner decreed, by the sub-judge. This was affirmed by the District Judge. A second appeal to the High Court was also unsuccessful. hence this appeal by special leave. 4-17 While interpreting Section 11 of the Jammu Kashmir Act, 1966, it was held by the Supreme Court regarding service of notice that: We are of opinio that the conclusion arrived at by the

courts below is correct and should be upheld. It is true that the proviso to clause (i) of Section 11(1) and the proviso to Section 12(3) are intended for the protection of the tenant. Nevertheless it will be easy to see that too strict and literal a compliance of their language would be impractical and unworkable. the proviso insist that before any amount of rent can be said to be in arrears, a notice has to be served through post. All that a landlord can do to comply with this provison is to post a prepaid registered letter ( acknowledgement due or otherwise ) containing the tenant's correct address. Once he does this and the letter is delivered to the post office, he has no control over it. It is then presumed to have been delivered to the addressee under Section 27 of the General Clauses Act. Under the rules of the post office, the letter is to be delivered to the addressee or a person authorised by him. Such a person may either accept the letter or decline to accept it. In either case, there is no defficulty, for the acceptance or refusal can be treated as a service on, and receipt by, the addressee. The difficulty is where the postman call at the address mentaioned and is unable to contact the addressee or a person authorised to receive the letter. All that he can then do is to return it to the sender. The Indian post Office Rules do not presecribe any detailed procedure regarding the delivery of such registered letters. When the postman is unable to deliver it on his first visit, the general practice is for the postman to attempt to deliver it on the next one or two

-42-

days also before returning it to the sender. However, he has neither the power nor the time to make enquiries regarding the whereabouts of the addressee; he is not expected to detain the letter until the addressee chooses to return and accept it, and he is not authorised to affix the letter on the premises because of the assessee's absence. His responsibilities cannot, therefore, be equated to those of a process server entrusted with the responsibilities of serving the summons of a court under Order V of the CPC. The statutory provision has to be interpreted in the context of this difficulty and in the light of the very limited role that the post office can play in such a task. If we interpret provision as requiring that the letter must have been actually delivered to the addressee, we would be virtually rendering it a dead letter. The letter cannot be served where, as in this case, the tenant is away from the premises for some considerable time. Also, an addressee can easily avoid receiving the letter addressed to him without specifically refusing to receive it. He can so manifulate matters that it gets returned to the sender with vague endorsements such as " not found", "not in station", "addressee has left" and so on. It is suggested that a landlord, knowing that the tenant is away from station for some reasons, could go through the motions of posting a letter to him which he knows will not be served. Such a possibility cannot be excluded. But as against this, if a registered letter addressed to a person at his residential address does not get served in the normal and is returned, it can only be attributed to the addressee's own conduct. If he is staying in the premises, there is no reason why it should not be served on him. If he is compelled to be away for some time, all that he has to do is to leave necessary instructions with with the postal authorities either to detain the letters

-43-

Manipulations on service of the notice:

addressed to him for some time until he returns or to forward them to the address where he has gone or to deliver them to some other person authorised by him . In this situation, we have to choose the more reasonable, effective, equitable and practical interpretation and that would be to read the word "served" as "sent by post", correctly and properly addressed to the tenant, and the word "receipt" as the tender of the letter by the postal peon at the address mentioned in the letter. No other interpretation, we think, will fit the situation as it is simply not possible for a landlord to ensure that a registered letter sent by him gets served on, or is received by, the tenant.

4.18 It was also held in Rameshwar lal and another vs. raghunath Das and other ( 1990) 4 SCC 729 that if the service of notice is made on tenant's brother sitting on the shop it would be sufficient.

4.19 Owing to non-uniformity in the decisions of the High Courts and the Supreme Court, the practice of chicanery is encourage. The reasons for that are clear. By reason of the necessity of giving a notice of demand before proceeding for eviction on the ground of arrears of rent of the specified period, the landlord and tenant, both, resort to fraud in their own way. The landlord, has, always, the desire that somehow or the other the service of demand notice be made according to law. In that behalf, he remains in search of the opportunity when the tenant is not present in the rented building and has gone outside due to ailment, travel or other reasons.Sometimes, even if tenant is present, he conspires with the postman so as to secure the endorsement of "refusal" or "left without address" upon the notice. This policy is adopted for the reason that the compliance with necessity of service of demand-notice is made and there remains no obstacle in starting the proceedings for eviction. Some tenant are also not less cunning; he too, in collusion with the

-44-

Suggestion: Abolition of one apportunity to pay rent: Suggestion :

postman, tries that he makes such a false endorsement on the notice which may not amount to service or on seeing the postman or on receiving any information about him, he hides himself so that the service cannot be made. Apart from this bilateral device, the dispute as to service of notice creates a contentious field, which calls for unnecessary abuse of money and time. The apathy between the parties on the point of serivice of notice carves its own ground. Perhaps due to this reason, the necessity of notice prior to the institution of suit for eviction on the ground of default in payment of rent has been dropped, as is clear from the Table No. 5 (pages N0. 36 to 38). Therefore, the necessity of giving notice of demand be dropped from clause (a) of sub-section (2) of section 20 of the principal Act, 1972. 4.20 No doubt, on dispensing with the necessity of notice, there is curtainlment of the right of the tenant to have an opportunity of avoiding eviction. Although compensation of effacement of such right is possible under sub-section (4) of Section 20 of the principal Act, 1972, according to which the tenant may evade the scourge of eviction by appearing during the proceeding of eviction and depositing all the dues. But sometimes there may be possibility that on the one hand, the landlord may not give the notice of demand for the rent and on the other, may silently, obtain an exparte order for the rent and eviction against the tenant. To overcome that unjust situation, a provision may be added in sub-section (4) of Section 20 itself that in the case of passing exparte order, three months time for its execution shall be given with the condition that if the tenant deposits the entire decretal amount before the prescribed authority within that period, then that order shall not be liable to be executed.

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Different/ inconsistent use: Difference between the two

4-21 In clause (d) of sub-section (2) of section 20 of the

Principal Act of 1972, it is specified as one of the grounds for the

eviction of a tenant that " the tenant has, without the consent in

writing of the landlord, used it for a purpose other than the purpose

for which he was admitted to the tenancy of the building or otherwise

has done any act, which is inconsistent with such use". Obviously, no

time-limit has been prescribed for different use or inconsistent use.

This would imply, by applying the rule of literal construction, that if

a building has been put to different use or inconsistent use, even for

day, or for some days only, the landlord would be entitled in that

case to evict the tenant. The omission to prescribe a time- frame is

absolutely against the object of the legislation.

4-22 Undoubtedly, there is a difference between different use

and inconsistant use. Different use is a situation, in which the initial

purpose of letting on rent is totally given up and some other purpose

is adopted. For example, if a building, which is let out for residential

purpose, is used as a Nursing Home by the wife of the tenant, or is

used as a store house for a shop, the use of this kind will be called

different purpose. As against this, if a building is let out for

commercial purpose, and it is used, without adhering to the initial use

for selling stationery, for running a restaurant, then it will be a case

of inconsistent purpose despite both being commercial purposes. In

other words, if both the purposes are either

-46-

Substantial and causal purpose:

Residental or commercial, then, not with-standing the distinct uses of the building, such purposes shall be inconsistent purposes, and if two purposes are not indentical-one is residential and the ohter commercial, then such purposes shall be different purposes: 4.23 Another situations relating to different and inconsistent purposes deserves mention. The current use, either different from, or inconsistent with, the initial purpose, should be substantial and not merely causal or occasional. In order that it is substantial, the duration of the purpose should, also, be reasonable, If a marriage-party is allowed to occupy, for a new days, a house, which has been let out for residential purpose, or if, on account of repairs in the building which has been let out, a shop is shifted, ofr a few days, to residential premises, or paying guests are accommodated in the building in the course of business, then such causal user should not be treated as different or inconsistent use. Sometimes a tenant is compelled by circumstances to alter the use of the building which was, initially, intended. In Santram vs. Rajendra Lal and others (1979) 1 R.C.J. 13 a shoemaker had taken a building on rent for the purpose of his profession. His wife was suffering from mental disease. He used to keep her in the shop on working days, cooked food for her and, also, used the premises during night for taking rest, as it was feared that she might, ohter-wise, cause harm to her own life or to others if she was left alone at the house. Whenever the shop was closed, the shoe-maker would go, with his wife, to his hous, lieved

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Non user:

there, cooked food and slept during night. Due to proverty, it was not possible for him to engage a servant. The landlord has knowledge of these facts. Such use was held by the Supreme Court not to be different or inconsistent use. similarly, in Dyanu Manu v. Vitthal Vishnu Mohan Dalo 1990 Supp Scc 654 it was held that if a shop is run by a barber in a premises during morming hours and evening hours, let out to him for commercial purpose, and he works, during day-time, in Maharashtra State Road Transport Corporation, and, also, uses the back portion of the premises for dwelling purpose on account of poverty, the use of the shop, partially for other purpose, would not be for different purpose. Therefore, the initial purpose, in order to be substantially different or inconsistent, should not be short-lived but of long duration, so as to indicate clearly that the user is different or inconsistent. 4.24 An analogous situation arises when the building, which has been let out, is not used for any purpose whatsoever. Clause (d) of sub-section (2) of section 20 of the Principal Act of 1972, does not expressly refer to a situation of non-user. A literal interpretation would suggest that it is only a different or inconsistent use, as compared to the initial purpose, that is prohibited, and not a total non-user of the building. Such an interpretation may not be regarded as reasonable. In this connection, a reference may be made to some of the rulings of the Supreme Court: 1. In Vohra Rahimbhai Hari Hasanbhai Popat V. Vohra Sundarlal Manilal and another (1985) 4 SCC 551, section 13 (1) (k) of Bombay Act of

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1947, specifying, as a ground for eviction, not using the building for the original purpose for six months continuously prior to the institution of suit, came up for considration. It was a condition, along with the other terms of tenancy, according to facts of the case, that the tenant would be liable to pay rent for the building, whether or not the nuilding is used by him. It was held that this condition related to payment of rent only. It cannot be construed as permiting the tenant to keep the building closed and not to use it for years successively. this would not be the object of the legislation, having regard to the scarcity of buildings in the urban areas. If it is held that, according to the terms of the tenancy, it was open to the tenant to keep the building closed without using it, the condition would be illegal and void. Therefore, the object of the legislation would be fulfilled by including the non-user of the building also in the grounds for eviction. 2. In Shiva lal v. Satya Prakash and another (1993) Supp. (2) SCC 345, it was held with reference to the provisions of section 13 (2) (v) of East Punjab Act of 1949, which enables a tenant to be evicted if he fails to occupy the building, except in hill areas, for four months without reasonable cause, that the underlying pricniple is that where a bilding is not required by a tenant,

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Comparative Provisions of the enactments of other states:

it may be let out to another person, who is in need of it. 4.25 As it will appear from the following Table No. 6, there are provisions made in the enactments of other States to serve the object of legislation and to eliminate the circumstances appearing against the tenant.

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Table No. 6

S.N. Name of the Act Period of different and inconsistant purpose

and section

Type and period of non-user, with section

1 2 3 4 1. Andhara Pradesh

Act, 1960 - Continuous detachment for 4

months from enjoyment without reasonable cause -Section 10(2) (v)

2. Kerala Act, 1965 - Detachment for 6 months from enjoyment without reasonable cause -Section 11(4) (v)

3. Goa, Daman and Deu Act, 1968

- Continuous detachment for 4 months from enjoyment without reasonable cause -Section 22(2) (f)


- Except hill area, continuous detachment for 4 months from enjoyment without reasonable cause -Section 10(2) (vi)

5. West benagal Act, 1956

More than 4 months, without written consent of the landlord -section 13 (1) (h)

-

6. Pondichery Act, 1969

- Continous detachment for 4 months from enjoyment without reasonable casue - Section 10(2) (vi)


- except hill area, continuos detachment for 4 months form enjoyment without reasonable cause - Section 13 (2) (v)

-51-

8. Bombay Act, 1947 Till 6 months before the suit without reasonable cause -Section 13 (1) (k)

-

9. Madhya Pradesh Act, 1961

-

Detachment for 6 months before the suit without reasonable cause -Section 12(1) (d)

10. Mysore Act, 1961 Till 6 months before the suit without reasonable cause -Section 21 (1) (0)

-


Till 6 months before the suit without reasonable cause -Section 13 (1) (j)

-

12. Haryana Act, 1973 -

Except hill area, continuous detachment for 4 months from enjoyment without reasonable cause -Section 13(2) (v)

13. Himachal Pradesh Act, 1987

-

Continous detachment from enjoyment without reasonable casue - Section 14(2) (v)

-52-

Period for different/ inconsistent purpose: suggestions:

4.26 The entries in column-3 of the Table will show that in West Bengal the different/ inconsistent use of a building let out on rent, without written consent of the landlord, for more than 4 months will render the tenant liable for eviction. This period is six months in bombay (Mumbai), Mysore and Rajasthan Acts and the tenant has been given liberty to show reasonable cause for different/ inconsistent use. According to the entries in column-4 in andhra Pradesh, Kerala, goa, Daman & Diu, Pondichery and Himachal Pradesh, a person is liable for eviction, if he ceases to occupy the building, with-out reasonable cause, subject to the difference in period of non-occupation. Such a ground does not exist in Tamilnadu and hill areas in East Punjab and haryana. In madhay Pradesh, further condition has been imposed, in addition to other similar conditions, that failure to occupy the building for six months without reasonable cause should be there immediately before the institution of suit. The point of difference in entries in column-3 & 4 will be found in the fact that in the former the use of building is made, in the latter, there is failure to use. For example, if a residential building is used for the purposes of trade or running a hotel, such use would be for a different purpose, but use would continue, As against this, if the lock is placed on residential building after putting some articles terein, it will indicate the buildings non user. It will be necessary to include both kinds of cirnumstances in principal Act of 1972 for fulfilment of its objectives as also in the interest of the tenant. 4.27 It would be equitable to provide for the use of a building for four months for a different or inconsistant purpose as regards the cause specified in clause (d) of sub section (2) of the principal Act of

-53-

Suggestons :

1972, so that the tenant may be saved from the penal effect of use for a different or inconsistent purpose made in compelling circumstances. Similarly, it would, also, e appropriate to provide for failure to occupy the building continuously for four months without reasonable cause as the ground for eviction. Reasonable cause may be of various kinds- such as illness, employment at a different place, non-occupation of the building for a long time on account of tour etc. Since the principal Act of 1972 does not contain any special provision for hill areas, it may not be proper to exclude the hill areas. however, it may be observed that in case it is not possible to occupy a building throughtout the year on account of cold weather, it will be a reasonable ground for non- occupying the building. It is, also, considered to be not very appropriate to specify the condition, as in Madhaya Pradesh, on immediately before the insititution of the suit', because it will enable the tenant to stop the use of the building for different or inconsistent purpose or its non-user whenever his eviction seems imminent and thus adopt unfair means to defeat the provisions of the Act. 4.28 In short, the State Law Commission is of the view that - (1) In the last portion of the clause (d) of sub-section (2) of

Section 20, the provision relating to the use of the building for illegal or immoral pruposes may be placed in separate clause,

(2) The provision relating to use for different / inconsistent purpose may be restricted to four months, subject to a contract to the contrary by the parties, and

(3) failure tooccupy the building, without reasonable cause, for four months continuously may, also, be specified as a ground for eviction.

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Sub- Tenant : Legal Grounds : Law of other States:

4.29 According to clause (e0 of sub section (2) of section 20 of the principal Act of 1972, a tenant shall be liable to eviction, if he has sub-let in contravention of the provisions of section 25, or as the case may be, of the old Act, the whole or any part of the building. This provision is not without reason. . 4.30 The letting out of the building is a kind of transfer of property, which confers on the tenant a right to enjoy lease-hold subject to the provision of law and/ or terms of contract. Generally, the ownership of property comprises title as well as possession. Lease separates the two, and the result is that title remains with the owner & physical possession vests in the tenant. As a matter of fact, the letting out of property is a transfer of the right of enjoyment. Though such interest is, also, transferable under clause (j) of Section 108 of the Transfer of Property Act, 1882 until forbidden by agreement, the normal right to make such a transfer has been wholly or partially, conditionally or unconditionally, prohibited in the rent control & eviction Act inforce in almost every State. This position would be clear form the following Table No. 7.

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Table No. 7


Used procedure and Aection Restricted circumstances

1 2 3 4 1. Andhara Pradesh

Act, 1960 To keep sub-tenant in the entire building or any portion there of or/ and to transfer the tenacy right against the terms of lease Section 10(2) (ii) (a)

- 2. Assam Act, 1972 To keep sub-tenant in the entire

building or any portion there of without written permission of the landlord or / and to transfer it- section 5(1) (d)

- 3. Orissa Act, 1967

Section 7(2) (ii) (a) -

On partition of rights of members of joint-Hindu family or co-tenants or on dissolution of any firm, rights acquired by any of tem shall not be included in the definition of transfer. - if the transfer or sub-tenancy is terminated or put on end, the ground for eviction shall extinguish.

4. Kerala Act, 1965 To keep sub-tenant in the entire building or any portion there of without written permission of the landlord or / and to transfer it- section 11(4) (i)

-

5. Goa, Daman and Diu Act, 1968

To keep sub-tenant in the entire building or any portion there of without written permission of the landlord or / and to transfer it- section 22(2) (b) (i)

-

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1 2 3 4 6. Tripura

Act, 1975 To keep sub-tenant in the entire building or any portion there of without written permission of the landlord or / and to transfer it- section 12(4) (i)

On partition of rights of members of joint -Hindu family or co-tenant or on dissolution of any firm, rights acquired by any of hem shall not be included in the definition of transfer.

7. Delhi Act, 1995

-do-

section 22(2) (b)

-


-do-

section 13(1) (a)

-

9. Pondichery Act, 1969

To keep sub-tenant in the entire building or any portion there of against the terms of the agreement, or to transfer it- section 10(2) (ii) (a)

-


To keep sub-tenant in the entire building or any portion thereof without written permission of the landlord or / and to transfer it- section 13(2) (i) (a)

-

11. Madhaya Pradesh Act, 1961

To keep sub-tenant in the entire building or any portion there of against the law or / and to transfer or assign it. - section 12(1) (b)

-

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1 2 3 4 12. Meghalaya

Act, 1972 To keep sub-tenant in the entire building or any portion thereof without written permission of the landlord or / and to transfer it - section 5(4) (i) (d)

-

13. Mysore Act, 1961

To keep sub-tenant in the entire building or any portion thereof against the law or /and to transfer or assign it. - section 21(1) (f) (d)

-


To keep sub-tenant in the entire building or any portion thereof without written permission of the landlord or / and to transfer it - section 13(1) (e)

-

15. Haryana Act, 1973

To keep sub-tenant in the entire building or any portion thereof without written permission of the landlord or to transfer it - section 13(2) (ii) (a)

-

16. Himachal Pradesh Act, 1987

To keep sub-tenant in the entire building or any portion thereof without written permission of the landlord or / and to transfer it- section 14(2) (ii) (a)

-

-58-

Transfer of the right of bonafide use :

4.31 The entries in column-3 of the Table will show that the tenant can put an end to his right to enjoy the lease-hold, wholly or partially, in one of the following three ways, namely- (1) by sub-letting, or (2) by assignment, or (3) by transfer There is defference in the three modes. In order to prove sub-letting, it is necessary to show the exclusive right of the sub-tenant and payment of consideration by him to the tenant, although reversionary interest vests in the tenant and he is concerned with the property as well as contract. In consignment, jural relationship arises between the owner and consignee, while contractual relationship remains in existance between the owner of the building and the original tenant. In the case to transfer, the original tenant ceases to have any relation-ship with the contract as well as property. Since consignment and transfer are not wholly covered by sub-letting , provision has been made with regard to consignment and transfer, in addition to sub-letting, in Acts mentioned in Table No. 7. 4.32 In the principal Act of 1972, provision has been made with regard to sub-letting only, with the result that proceedings for eviction may be initiated against the tenant on theground of sub-letting, which is a kind of transfer, but not on the grounds of

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Partition in the Joint family and dissolution of the firm :

assignment or transfer, and further that the alegation of sub-letting may be rendered insignificant under the guise of consignment or transfer . 4.33 It will also appear from column-4 of the Table that in Kerala and Tripura enactments, the right accruing as result of partition in the family or dissolution of firm are excluded from the definition of transfer. It is further provided in the kerala Act that in case, the sub tenancy, and /or transfer, is terminated within thirty days of the service of registered notice, the original tenant would not be liable to eviction. This exclusion is supported by reason: (1) The property of a firm is owned by all the partners and no one of them can claim that firm's property belongs to him exclusively or that he alone has the right to enjoy it. The property, whatever be, is the property of the partnership. Consequently on dissolution of the firm when the partnership property is divided, and as a result of that a particular property comes to the share of a partner, it can not be said on account of the previons ownership that the property has been acquired by him by transfer. This principle is also applicable in respect of tenancy rights of firm, because the joint occuation and interest of the partners is, also, conceivable in respect of such rights. This principle finds support from the decisions in Shyam Sunder and others v. Brij Lal Chaman Lal Purani and others, A.I.R. 1968, Punjab- 28 and kanahiya Lal Balkishan Dass v. Labhu Ram, A.I.R. 1971, Delhi 219. wherein it has been held that

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If the firm's property, belonging to partnership with tenancy

rights, is allotted to one of the partners on the dissolution of the

firm, then the acquisition of such property by means of

partition can not be deemed to have been made by virtue of

transfer nor the tenancy would be covered by sub-letting or

transfer. It has, also, been held that the concept of sub-letting

or transfer, as the case may be, relates to strangers. The object

of legislation, also, appears to be the same and that is why on

the dissolution of a firm all the partners continue to be liable

for payment of rent.

(2) The same rule is applicable to joint family property. All the

members of the joint family have the right to use and occupy

the property jointly and severally. On partition, the property,

which is allotted to a member, is in respect of his share in the

joint family property. He ceases to have any right or interest in

the remaining property of the joint family. When a property,

which is held by joint family as a tenant, is allotted to one of

the members of joint family on partition, new rights are not

credited in his favour, but he gets what was due to him in the

joint family property, in respect of the property which has

been, specifically allotted to him. In support of this principle,

the case of V.N. Sarin V. Major Ajit Kumar Poplai, A.I.R.

1966, Supreme Court 432, may be cited.

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Suggestion :

(3) The Transfer of right by a co-tenant in favour of other co-

tenant in property held by them jointly also can not be

included, according to the above principales, in sub-

letting, as held in Kora Galaba V. jakhri Vithri A.I.R.

1927, madras 61.

4.34 Therefore it appears to be reasonable that in addition to

sub-letting, it should also be a ground for eviction, that the tenant has

transferred his rights to another without written consent of the

landlord. This will not make any difference as regards principle,

rather the position would be clear because sub-letting is nothing but

transfer and it is only other kinds of transfers which would be

covered by the above provision as grounds for eviction. (vide basant

Pratap Pandit BRsV. Dr. Anant Triambak Sabnish (1994) 3

S.C.C.481.

4.35 According to column, is provided in the Kerala Act that

the tenant shall not be liable for eviction in case the sub-tenancy and

/or transfer is terminated within thirty days of the service of

registered notice. This Provision does not appear to be

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Other grounds for eviction : Bonafide requirement of the building :

reasonable, because it gives a license to the tenant to sub-let the

lease property or to transfer the same to a stranger at his pleasure and

on receipt of notice from landlord to terminate the same. And after

the eviction proceedings are stopped, the tenant may again sub-let or

transfer the premises to another. That is why it seems that such a

provision has not been adopted in other States. The provision

contained in Kerala Act is liable to be mis-used in practice and is

likely to lead to complexities and it is also against moral behaviour.

4.36 Section 21(1) of the principal Act empowers the prescribed

authority to order the eviction of the tenant from the building under

tenancy or any specified part thereof if it is satisfied that any of the

grounds mentioned in clause (a) or clasuse (b) exists.

4.37 According to the provison of clasue (a) the building is

bonafide required by landlord for occupation. It is also provided in

relation to bonafide requirement that the building is required either in

its existing form or after demolition and new construction by

landlord for occupation by himself or any memeber of his family, or

any person for whose benefit it is held by him family, or any person

for whose benefit it is held by him, either for residential purposes or

for purposes of any profession, trade or calling or where the

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Demolition and new construction : Justification retaining the provision of bonafide requirement of the premises :

landlord is the trustee of a public charitable trust, for objects of the trust. 4.38 According to clause (b0, if the building is in dilapidated condition and is required for purposes of demolition and new construction, then also an order can be passed on the application of the landlord for the eviction of tenant. 4.39 The two conditions, which are embodied in clause (a), appear to be unnecessary. If the building is requred by landlord for occupation, then it makes no difference whether it is required in its existing form or after demolition and new construction. After the eviction of the tenant, the building would be used by landlord in its existing form only and the question of its demolition would arise only when building is fit for demolition either on account of its having becaome old or any other reason. It may be that the landlord may without regard to the nature of the existing building demolish it and make new construction with a view to earning more profit. But such cases would be few and if landlord evicts a tenat with this motive, it can not be said to be just in view of the scarcity of accommodation in urban areas. In this way, if the prescribed authority is satisfied about the root cause, namely that the building is bonafide requied by the landlord, then it may be left to his good sense that he may occupy the building in its existing form or after causing it to be demolished and raising new

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Suggestion:

construction. Like wise, it does not seem to be just and proper that bonafide requirement is restricted by nature of the purpose, that is to say for residential purposes or for purposes of carrying on any profession, trade or calling. The above mentioned provision has been a source of duspute and long-drawn litigation between the landlord and tenant and causes bitter relations between them. Waste of time and money for resolving the dispute is in addition to it. When a landlord makes an application for eviction of the tenant on the basis of allegation that the building is bonafide required by him for occupation, it is natural that the landlord would, also, state the nature and details regarding occupation. Generally speaking, occupation would be related with the purposes of residence or profession, trade or calling. In case it is established that the landlord wants to occupy the building so that he may remove the tenant and let out the building to another person, it can not be said that building is bonafide required by landlord for occupation. With the exception of this particular circumstance, no other circumstances can be visualisedwhich would be against the interest of the tenant. A landlord is not deprived of the ownership of a building merely because he has let it out and so long as his right to occupy the building either by himself or by any member of his family or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade or calling if it is so warranted by the existing circumstances. Therefore the Commission is of the view

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justification for eviction on the ground of dilapidated condition of building : Suggestion : Binding of demolition the building on order of public authorities

that on the proof of the fact that the building is bonafide required by the landlord it would be open to him to cause the tenant to be evicted from the whole or the specified portion of the building and there is no justification for qualifying this right in any manner. 4.40 So far as clause (b) is concerned, it is remarkable that if building is in dilapidated condition and is required to be demolished , then it would be in the interest of the tenant himself to vacate the building. Nobody, whether he is landlord or tenant would like to live in dilapidated building and become target of natural calamities. Reconstruction of building, after its demolition, is subject to the tendency and economic capacity of the landlord. It is not necessary that the building may be constructed a new by the landlord after demolition, he can not be compelled for it and no mandatary order can be passed against him. Therefore, for the purposes of eviction it whould be sufficient reason that building is in the dilapidated condition and is required for demolition. Where the landlrd constructs the building again after demolition of the old one, and does not himself occupy the same, there is sufficient provision mad ein section 24 (2) for protection of the tenant's right. The tenant may initiate legal proceedings for occuping the building again and on the fulfitment of conditions in that behalf, can obtain an order in his favour from District Magistrate. In this context, it is notable that sometimes the landlord is also compelled by Nagar mahapalika, Vikas Pradhikarn and other public authorities to demolish his house. In case of non

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Suggestion :

complience of such order by the landlord, he is rendered liable to punishment and may be subjected to covercive process. In such a situation, it would be just and proper that the landlord is given liberty to apply for aviction of the tenant from the building or a specified portion thereof and to obtain order in that behalf from the prescribed authority, provided some order, which is final and legally enforceable, has been passed by a public authority in accordance with law for demolition of the building. In this connection, a provision must be made that after evicting the tenant, the building is, actually, demolished by the landlord and it should be ensured that eviction order is not used by the landlord simply for the purpose of evicting the tenant. If the building is not demolished after the eviction of the tenant, then there should be a provision for restitution and initiation of of appropriate criminal or other proceedings against the landlord. In other proceedings, referred to above, the landlord may, also, be visited with the liability to give proper compensation to the tenant for the duration of eviction. it is worth mention that the provision has been made in the enactments of other States with regard to the eviction of tenant in cases of demolition order passed by a Public authority, as will appear from the foregoing table No. 3. 4.41 The fourth proviso to sub section (1) of Section 21 of the principal Act of 1972 lays emphasis

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on the fact that the prescribed authority shall take into account the likely hardship to the tenant from the grant of the application as against the likely hardship to the landlord from the fefusal of the application in case of bonafide requirement of the landlord for occupation or for purposes of the reconstruction. The restriction of this kind is need less, because- (1) When tenant is evicted from the building taken on lease, he

would, necessarily feel hardship and at times his hardship will, comparatively, be greater than the hardship that may by caused to the landlord. It is worth remembering in this connection that the land lord owns. The building which has been let out. The ownership and possession of property both vest in the landlord, but when building is let out, the ownership is left with landlord and physical occupation of the property vests in the tenant. It would be ridiculous that landlord should be deprived of his property for all times to come only on the ground that it is occupied by tenant. What is to be seen is that if the building is bonafide required by landlord, whether for residential purposes or any other purposes, he must get the right to possess and occupy the same, even if from ocmparative point of view it may cause more hardship to the tenant. The emphasis is on bonafide requirement and not mere requirement.

(2) There is no definite standard for likely hardship from

comparative point of view and in the course of litigation, circumstances may arise which may lend support to the hardhip of both sides and in a such case it is only the discretion of the prescribed Authority which is paramount.

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(3) (4) (5) Suggestion :

In the enactments of other States, such as Andhra Pradesh Act of 1960, Orisa Act of 1967, Goa Daman &Diu Act of 1968, Delhi Act of 1995] West bengalAct of 1956, East Punjab Act of 1949, Bihar Act of 1982, Meghalaya Act of 197, Mysore Act of 1961, Rajasthan Act of 1950, Haryana Act of 1973 and himachal Pradesh Act of 1987, there is no provision for determining comparative likely hardship. It is held in Hira Lal Mool Chand doshi V. Barot Raman Lal Ranchhoddas (1993) 2. S.C.C. 458 that if the landlord wants to evict the tenant on the ground of bonafide personal requirement, then it is not necessary to make specific allegation in the plaint/ application for eviction about comparative hardship. it is possible that after eviction order is passed, the tenant may face the difficulty of not getting an alternative accommodation immediately to much torment to himself and his family. For this purpose the proper suggestion will be that the tenant be given sufficient time to vacate the building simultaneously with the eviction order or subsequent thereto. Such a provision exists in statutes of various States, as it will be clear from the following Table No. 8.

Table No. 8

S.N. Name of the Act Section for providing time Time-period

1 2 3 4

1. Andhra Pradesh Act, 1960 Second proviso of 10(3) (e) Not more than 3 months

Kerala Act, 1965 Second proviso of 11(10) Not more than 3 months

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1 2 3 4 3. Tamilnadu Act, 1960 Second proviso of 10(3) (e) Not more than 3

months 4. Tripura Act, 1975 Second Proviso of 12 (2) Not more than 3

months 5. Delhi Act, 1995 Proviso of 22(2) (j) 1 6. Pondichery Act, 1969 Second Proviso of 10(3) (e) Not more than 3

months 7. East Panjab Act, 1949 Proviso of 13(3) (b) Not more than 3

months 8. Rajasthan Act, 1950 13 (9) Not more than 2

months 9. haryana Act, 1973 Proviso of 13(4) Not more than 3

months 10. Himachal Pradesh Act,

1987 Proviso of 13(2) Not more than 3

months

4.42 having regard to the practice prevailing in other States, provision may be made

in the principal in other States, provison may be made in the principal Act for

empowering the prescribed authority to grant time to the tenat upto 3 months.

In that behalf provision be made at proper place in Section 20, because one

months time in Section 21 (6) is inadequate.

4.43 Sub-Section (1-A) of section 21 of the principal Act, 1972 is as follows :

" (1-A) Notwithstanding anything contained in Section 2, the prescribed

authority Shall, on the application of a landlord in that behalf, order the

eviction of a tenant from any building under tenancy, if it is satisfied that the

landlord of such building was in occupation of a public building for residential

purposes which he had to vacate on account of the cessation of his

employent :"

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Provided that an application under this sub-section may be given by a landlord in occupation of such public building at any time within a period of one year before the expected date of cessation of his employment, but the order of eviction on such application shall take effect only on the date of his actual cessation." 4.44 This sub- section is an exception to the general rule incorporated in sub-section (1) of Section 21, under which the landlord has to prove only that he was an occupant of a public building for residential puposes, which he had to vacate on account of the cessation of his employment. On proving this, he becomes entitled for the release of his building. The prescribed authority is bound to release without considering the actual necessity of the landlord and the comparative wardship between the landlord and the tenant. Because owing to cessation of the employment, the problem of residence arises on vacating the public building occupied for resdidential purposes this statutory provision has been made to solve it. The procedure mentioned in Section 21(1) is long and commplicated. That is why, this expeditious and simple procedure was laid down so that the landlord may not be without shelter on vacating the public building and may acquire his residence for residential purpose without delay. 4.45 Clearly, sub-section (1-A), under scrutiny, does not atone for certain contingeneies : 1. Where any landlord, having a right to occupy the publicbuilding, does not get any public building, resides in any rented house, gets house-rent allowance and, on occount of cessation of employment, is willing to go to his house, which is located in any other place or locality, 2. Where, in such other place or locality, he has more than one house, and

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3. Where he dies before cessation of employment and his family has to vacate the public building or any other building.

4.46 For solution of the foregoing, provisions should be made. There is justification also for it. On death of the officer eligible for occupation of the a public building before the cessation of employment, his/ her widow / windower : 1. may have to vacate the public building, or 2. in the case of its not being a public building, the obligatory situation of vacating the other rented house and going in the house of his/ her wife/ husband may arise, or 3. Where the house of husband/wife is situate, there may not be any other house of them. 4.47 By East Punjab (Amendment) Act No. 2 of 1985, appropriate provisions ofr meeting the aforesaid contingencies have been made by insertion of Section 13-A in the East Punjab Act, 1949. 4.48 Therefore, it would be worth while to make the following amendments in Section 20, corresponding to sub-section (1-A) of Section 21 of the principal Act, 1972: 1. After the word occupation the words, or was entitled for occupation

be inserted, 2. Other consequential amendments be made in the said provision, 3. Apart from cessation of employment on the death of landlord, his/her

widow/ widower/ members of the family be given a right to made a requisite application for the eviction of tenant from any rented house; and

4. The rider that if the landlord has more than one building in any specific place or locality, the provisos of sub-clause (1-A) shall be applicable only ofr one building, be, also added.

&72&

Saving from default in payment of rent: Exemption from liability for eviction :

4.49 Sub- section (4) of Section 20 of the principal Act, 1972 is as below:-

" In any suit for eviction on the ground mentioned in clause (a) of sub-section (2), if at the first hearing of the suit the tenant unconditionally pays or tenders to the landlord or deposits in court the entire amount of rent and damages for use and occupation of the building due form him (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine percent, per annum and the landlord's costs of the suit in respect thereof, after deducting therefrom any amount already deposited by the thenant under sub-section (10 of section 30, the court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground

4.50 obviosly if the tenant wants that he should be saved from the liability for eviction, then he has to satisfy the condition of paying or tendering to the landlord or depositing in court, the entire rent due before the institution of the suit and after termination of tenancy and amount of damages calculated at the rate of rent for the period of litigation and interest on the same at the rate of 9 per cent per annum and cost of suit after making necessary deduction

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Ambiguity of first hearing :

and adjustment. As a matter of fact, the main object of this sub-section is to provide an opportunity to the tenant to save himself from eviction. The provisions become applicable, when the landlord whall have initiated the proceeding against the tenant on the basis of default in payment of rent for the specified period and the building shall have been regulated by the principal Act, 1972 on the date of proceedings. The provisions are mandatory too (Sumer Chand vs. Atma Ram 1979 (U.P.) R.C.C. 340) and empower the court that if the tenant has deposited all the prescribed sums, he should be relieved against eviction. But law in respect of payment, tender or deposit of such rent as due is that is should be made on the date of first heraring of the suit for eviction. The expression first hearing has, undoubtedly, been the root cause of protracted litigation. The reason is that different interpretations in defferent cases are possible and that they have been so made by the high Courts and the Supreme Court. In Siya Ram v. District Judge, khiri 1984(1) ARC 410, the full bench of Allahabad High Court has held with reference to Section 20 (4) read with its Explanation that the date specified in the summons for any purpose shall be the date of first hearing and not any adjourned date. Disagreeing with the view taken in Siya Ram's case, the Supreme Court has ruled in Siraj Ahamad Sidduqui v. Prem nath kapoor (1993) 4 SCC 406 that the dated specified in the summons for the filing of the written statement can not be the date of first hearing, because the written statement can be filed, under Civil Procedure Code, even after the said date and before the date of first hearing. Therefore the date of first hearing would be the date, when the court applied its mind for framing issues and frames them if need be. In advaitanand v. Judge, Small Causes Court,

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Law of other States :

Meerut and others (1995) 3 SCC 407, the date of first hearing in a small cause suit, in which it is not required to frame issues, was held to be the date when the matter is taken up by court for final hearing. Similarly in Gurudev v. Surinder Kumar Sharma (1990) Supp. SCC 78, the first hearing has been held to be synonymous with actual hearing when the evidence of withnesses is recorded. Thus because of the possibility of more than one interpretation, the position with regard to decisions on the expression 'first hearing' is not very clear. For the sake of dealing with problem, recourse may be had to the system, which has been adopted in other States enactments according to the following Table No. 9

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Table - 9


Date / period of deposit of rent for saving from the default- with section

Amount and heads of deposit of rent for saving from eviction

closure of the defence

Previous rent

Rent during

Interest

cost of suit

1 2 3 4 5 1. Andhara

Pradesh Act, 1960

When the default is not wilful, then 15 days (proviso of section 10 (2)

due rent till the date of payment / tender

-

-

-

2. Orissa Act, 1967

-d0- Proviso of sec. 7(2)

-do- -do- - - if the admitted rent is neither deposited in the Court nor paid to the landlord, then closure of the defence Sec. 7(3)

3. Jammu & Kashmir Act, 1966

On or before the fifteenth day of the order given by the Court Section 12(2)

As fixed by the Court

till the date of the order

9-3/8 per annu

As fixed by the Court

-


Within one month from the date of delivery of summons or appearnace or within the period extended by the Court. Section 17(1)

From the till order till the previous month

For future months, till 15 the day of the next month

8-1/3 per annu

-

On not depositing at time, closure of defence. Section 17(3)

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1 2 3 4 5 5. Madhya

Pradesh, 1961

within one month of summons or within the period extended by the Court -Section 13(1)

till the date of deposit

For future months, till 15 days of the next month

-

-

-


within three months after the first date of hearing or submission of the written statement and before framing of issues. Section 13(3)

All rent not to be time barred

-do- 6% per annum

- if the rent and other due amount are not deposited in tim, then closure of the defence. Section 13(5)

7. Haryana Act, 1973

Within 15 days from the date of first hearing after the service- First proviso of Section 13(2) (i)

Before submission of the

application for deposit

-

8% per annum

As fixed by the controller

-

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Suggestion : Striking off the defence :

4.51 Therefore, in relation to the interpretation of 'first hearing' for removal of different types of possible contradictions, it would be proper that payment/ tender deposition period of the due rent is computed from such time or date which is determined by the court/ prescribed authority.

4.52 In cloumn 4 of the above table, strikingoff the right of defence in case of non-payment/ non deposition of rent etc. has been envisaged. Meaning of strikingoff of the defence, according to jogendra Singh Vs. Tirthmal and others, AIR 1980 Alld 351, is that the tenant- defendant can neither adduce evicdence nor can produce any witness, although he shall have a right to cross- examine the withnesses of the plaintiff and shall have right to prove that the landlord- plaintiff is not entitled to get any relief on the basis of his own evidence. It was stated in Madula India v. Kamakhya Singh Deo (1988) 4 SCC, 619 also that meaning of striking off defence is not that the landlord- plaintiff would get the decree for eviction automatically. The court has the right to give the tenant-defendant the opportunity to cross-examine the witnesses of landlord- plaintiff and under certain important conditions and limitations, to argue. This has been stated clearly in jain Motor Car Company Delhi vs. Swayam Prabha jain heeself and others, (1996) 3 SCC 55 that the power of the rent controller to strike -off the right of defence of the tenant is discretionary and in the light of the facts and circumstances he has power to condone delay in reasonable cases.

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Suggestion :

In view of these rulings it cannot be said that power to strike-off the

defence is uncontrolled and is punitive for tenant- defendant. In Uttar

Pradesh, Similar Provisions are available in Order xv, rule v of the Civil

Prodedure Code, According to them, if on the date of first hearing of the suit

or before it, all the admitted amount due before and after the institution of

the suit, alongwith interest at the rate of 9& per annum is not deposited by

the tenant- defendant, then the court can strike- off his right to defend under

spefcific conditions. Because the suggestion, for doing away with the

proceeding of small causes for eviction purpose and in its place substituting

the procedure of application, has been given in this report it would,

therefore, be justifiable that provisions of order xv, rule v of the Civil

Procedure Code, alongwith necessary changes, be incorporated in Section 20

it-self in the form of an independent sub- section.

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Chapter- 5

Simlification of Procedure

5.1 Benefit of the provisions is possible only when procedure for implementation of those provisions is simple and easy. The following procedural provision has been made in sub-section (3) of Section 21 of the principal Act, 1972 :-

" No order shall be made under sub-section )10 or sub-section (1-A) or sub-section (2), except after giving to the parties concerned a reasonable opportunity of being heard:

Provided that where the tenant being a servant of Government or of any local authority or any public sector corporation does not contest the application then a reasonable opportunity of being beard shall be given to the District Magistrate, who shall have the right to oppose the application".

5.2 To make the procedure simple and easy, there would be justification to make the right of reasonable opportunity of hearing of the parties more clear and detailed. It would be proper in this connection that in the newly proposed sub-section 3 of Section 20, there would and there should be a need to make provisions for signature and verification on the given application, documents and affidavits to be submitted with the application, types of the notices to be issued in connection with the application, and their annexure, type and extent of the reasonable opportunity of hearing to the concerned parties, limitation of adjournments and statements of timebound procedure for disposal of application.

5.3 It would be desirable to substitute the new provisions, in conformity with the abovementioned facts, in the place of sub-section (3) of Section 21 of the principal Act of 1972. -

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5.4 it would not be improper to point out in the end that on making the amendments according to the recommendations made in the previous pages, there would be necessily to make necessary amendments in Sections 9(2), 2-A(6), 8(1), 12(3-B), 12 (5), 22, 23(1), 24(2), 29(2) (b) proviso clause of 29 (3) (c) 43 (2) (a), 43(2) (rr) and rules 10(3), 10(6), 10(8)(c), 11(1), 15(title), 16 (2), 17(title), 17(1), 18(1), 18(2), 27(1), 32(a), item no. 13 of Form-A connected with rule 10(1) and serial nos. 7 and 8 of first schedule and item no. 8 etc. of second schedule, in which there is reference of Section 21 or its clauses or sub sections. Similarly there would be necessity to make necessary amendments in Sections 28-A, 29-A (6) (a), 39 and rule 10(5)(a), and in item no. 12 of Form-A connected with rule 10(1), in which there is reference of section 20 or its sub-clauses or its sub-section.

5.5 So far as the applications pending under different sections of the principal Act, 1972 on the date of commencement of the Act of the proposed amendments are concerned, it would be proper to substitute new procedure for themandit would also be proper that all pending applications/ appeals be transferred, as the case may be, to the prescribed authority/ District Judge. repealing and saving provisions may also be added under Section 43 of the principal Act, 1972 and it would be ncecessary to add them on acceptance of the proposed amendments.

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Chapter -6

Summary of recommendations

6.1 In the light of the suggestions made in the report, the recommendations of the Commission, in brief, are as follows:

(1) After omiting the second proviso of section 2(2), a provision be added in the original section that nothin in the Act shall apply to a building, the construction of which has been completed on 26 April 1985 or thereafter, during a period of 40 years from the date of completion of its construction. (page-10, Para- 2.2)

(2) In the first proviso to Section 2(2), a provision be substituted that where the construction of any building has, substantially, been made out of funds obtained by way loan or advance from the government or life Insurance Corporation of India, or a bank or a co-operative society or Uttar Pradesh Avas Evam Vikas Parishad, then :

(a) if the construction of the building has been completed before 26 April 1985, then nothin in the Act shall apply to such building during a period of 10 years from the date of construction or of repayment of such loan or advance, whichever is later, and (b) if the construction of the building has been completed on 26 April 1985 or thereafter, then nothin in the Act shall apply to such building during a period of 40 years from the date of construction or of repayment of such loan or advance, whichever is later. (page-11, para- 2.3)

(3) Section 9-A be repealed onaccount of its being of no utility and, consequentially, the words and figures "or section 9-A" be omitted from section 10. (page- 12, para- 2.4)

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(4) (a) Section 5 of the Act be onitted owing to its being ineffective, (b) The landlord, subject to a contract to the contrary, be given a right to

make, suo motu, after 5 years of the date of beginning of the tenancy and, thereafter, at an interval of every 5 year, 10 per cent increase in the rent of the residential buildings and 15 per cent increase in that of the commercial building, after a registered notice of such increase to the tenant, (pages- 19, 20, 21m paras- 3.6, 3.7, 3.9 )

(c) After omitting both the provisor of Section 21 (8), the similar provisions be not incorporated in amended section 20 and (page- 21, para- 3.10)

(d) In the light of the Amendment Act No. 28 of 1976, the words " unless the prescribed authority is satisfied that the landlord is a person to whom clause(ii) or clause(iv) of the Explanation to sub-section (1) is applicable" be omitted and similar provision be not incorporated in amended Section 20 (page -21, para- 3.10)

(5) (a) After amalgamation of the provisions of Section 20 and Section 21, only one section be retained and Section 21 be repealed, (page-33, para- 4.10)

(b) The procedure relating to institution of suit for eviction of a tenant and the jurisdiction of Civil Courts in respect of such suits may be abolished and, in respect of eviction orders passed under Section 20(2), the obligation to obtain an order of release under Section 16 may be dispensed with, (page 33, para- 4.10)

(c) After abolishing the entire procedureof suit, under the general law, for the eviction of tenant, and that of appeal, revision and execution relating thereto, a simplified procedure be laid down in its place and for making the procedure simple and easy, the provisions be made therein, through a new sub-section of Section, 20, about signing and verifying of the application, documents and affidavits to be submitted therewith, types/ service of notice to be issued in relation to the application, nature and

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extent of the reasonable opportunity of hearing to the parties, restraints on stay orders and details of the time-bound procedure for disposal of the applications, (page-33, para- 4.11)

(d) After omitteing the proviso of Section 20(1), the provisions relating to eviction mentioned therein be inserted separately in the serial of specified reasons (page-33, 34, para- 4.11)

(e) Attestation of the compromise or adjustment as referred to in the proviso to Section 20(1) by the notary or any other public authority should be made compulsory in a corresponding provision. ((page-34, para- 4.11)

(f) The necessity of giving notice to the tenant for the termination of tenancy, before the institution of suit on grounds specified in various clauses of Section 20(2) be done away with, (page-34, para- 4.12)

(g) the necessity of giving notice of hemand under clause (a) of Section 20(2) be done away with, (page-34, para- 4.19)

(h) The provision relating to "illegal or immoral purpose," given in teh latter part of clause (d) of Section 20(2) be assigned a separate clause, (page-53, para- 4.28)

(i) The provision relating to "defferent/ inconsistent purpose," given in the earlier part of clause (d) of Section 20(2) be qualified by a period of four months, subject to the terms of a contract to the contrary, (page-33, para- 4.28)

(j) In clause (e) of Section 20(2), apart from sub-tenancy, one more ground for eviction be

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Inserted that the tenant has transferred his rights, inter vivos or by will, without the written permission of the landlord, (page-61, para- 4.34)

(k) The situation of non-occupation, continuously, for a period of four months, without resonable cause, be, also, specified as a ground for eviction in Section 20(2), (page-63, para- 48)

(l) A provision in a separate clause be made in Section 20(2) that if any order for demolition of the building has been made by any public authority, which is legally final and enforceable, then on this ground also the landlord can apply to the prescribed authority for the eviction of tenant from the building or its specified portion, (page- 65, para- 4.40)

(m) The period of deposit/ payment of rent etc. due from the tenant be computable, in Section 20(4), not from "the first hearing," but from a date as may be fixed by the prescribed authority and , at the same time, a provision be, also, added in Section 20(4) that in the case of an exparte order for eviction, three months' time shall be given for its execution, with the rider that if the tenant deposits the whole of the decretal amount within that period before the prescribed authority, then that order shall not be liable to be executed and (page-44, para- 4.20 and Page-77, para- 4.50)

(n) The provisions relating to the striking-off of defence of the tenant-defendant by the court in the case of non-deposit of the admitted amount and interest thereon before or on the date fixed under Order xv, rule v of the Code of Civil Procedure be incorporated, with the necessary modifications, as an independent sub-section of Section 20 (page-78, para- 4.52)

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(6) (a) In place of the ground for eviction availabel in clause (a) of Section 21 (1), a corresponding provision in Section 20 be unserted only to the effect that the landlord, on requireing the building bonafied for occupation, can get the tenant evicted from the whole building or any specified portion thereof, (page- 65, para- 4.39)

(b) In place of the ground stated in clause (b) of Section 21(1), a corresponding provision in Section 20 be inserted only to the effect that if the building is in dilapidated condition and is required for the purpose of demolition, then the order of eviction of the tenant can be made on the application of the landlord, (page- 65, para- 4.40)

(c) In Section 20, after the provisiion corresponding to Section 21(10) (b), a provisiion be also made that if, after the eviction of tenant, the building is not de,olished within a specified period, then after consideeing the condition of the building and merits of his applicatiion the henant can be placed in occupation and proper punitive and other action can be taken against the landlord, (Page-66, para- 4.40)

(d) No provisioin correspending to the fourth proviso to Section 21(1) pertaining to " comparative hardship" be had in amended Section 20 (Page - 67, 68, para- 4.41_

(e) In the provisions of Section 20 correspending to Section 21 (1-A) :

(i) It may be provided in the later part of the provision, which relates to the satisfaction of the prescribed authority, that the landlord of such building was in occupation, or was entitled for occupation, of a public building for residential purposes (page-71, para 4.48)

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(ii) other consequential amendments be made in the said provision (page- 71, para- 4.48)

(iii) apart from the cessation of employment, even on the death of employment, even on the death of the landlord, his/her widow/ windower/ mamber of the family be entitled to give an application for the eviction of tenant from any rented building, and (page- 71, para- 4.48)

(iv) if there are more than one house of the landlord in a place or specifiec locality, then this provision be also added that ' the provisions of sub-section (1-A) shall apply to one building only. (Page-71, para- 4.48)

(f) As in Section 21(6), a similar provision be made under Section 20, empowering the prescribed authority to grant, on passing an order for eviction, three month's time to the tenant for vacating the building. (Page - 69, para- 4.42)

(7) The commission is of the view that the aggrieved party should have a right to prefer an appeal to the District Judge against the Judgement of the prescribed authority in an eviction case. It may be provided in the Act that the appeal shall be decided in accordance with the prescribed procedure and the appellate decision shall be final. (Page-33, Para 4.10 and Page- 79, para 5.2)

(8) If the commission Considers to make some other suggestions for necessary amenments, a report shall be sent again in future.

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SRINATH SAHAY SHIV PRASAD AGRAWAL AWADH BEHARI HAJELA

CHAIRMAN MEMBER MEMBER

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