Noor Ameena, VII Semester, NUALS
WHO IS A TENANT?
S. 2 (6) defines a tenant as ‘any person whom or on whose account rent is payable for a building and includes heir of the deceased tenant. Hence a tenancy of building is heritable. The Act envisages two types of tenants: A tenant per se and a statutory tenant. A tenant per se is any tenant who is instituted in a building by an agreement or otherwise, and the rent is paid out of his pocket or property and includes the heir/ heirs of the deceased tenant. A statutory tenant, on the other hand, is a tenant who is continuing in possession even after the termination of the tenancy in his favour. Statutory tenant itself can be classified into two.
(a) Tenant by holding over.
(b) Tenant at sufferance.
If after the determination of the tenancy, the tenant continues in possession of the leased premises with the assent of the landlord, he is popularly known as ‘tenant by holding over’ and if such continual in possession is without the assent of the landlord, he is a ‘tenant at sufferance’.
However the Act specifically excludes the following category from the purview of tenants.
(a) A kudikidappukaran, as defined in Kerala Land Reforms Act.
(b) A person placed in occupation of a building by its tenant.
(c) A person to whom collection of rents or fees in public market, cart stand or slaughter house or of rents for shops has been farmed out or leased by a Municipal Council, Municipal Corporation, Township committee or Panchayat.
RIGHTS OF TENANT
A. Right to fair rent
The tenant is liable to pay only the fair rent. The fair rent shall be determined by the Rent Control Court on application made by the tenant or the landlord as the case may be. Though the provisions concerning fair rent have been declared unconstitutional by the court as violative of the right to business of the landlord under Article 19 (1) (g) of the Constitution , the same has not been taken away in principle and the rent fixed by the landlord shall not by unreasonable.
B. Right against arbitrary eviction
1. The tenant shall not be evicted except under the grounds mentioned in S. 11 of the Act.
2. Any order of eviction on the ground of arrears of rent shall not be executed except after the expiry of one month from the order. The court shall vacate the order if the tenant deposits the arrears of rent with the cost of proceedings within the said period. In OusephMathaiv. Abdul Khadir , the Supreme Court held that the order under S. 11 (2) becomes final on the expiry of the time granted for deposit of arrears of rent bythe courts; the grant of stay does not amount to automatic extension of the statutory protection.
3. Where landlord seeks to evict the tenant on the ground of bona fide need for his own occupation of the family members, the Court shall not give a direction to the tenant to put the landlord in possession, if the livelihood of the tenant is solely dependent on the income derived from any trade or business carried on in that building and there is no other suitable available in the locality. However, the protection son granted is limited to the tenants who are natural persons or group of persons in contrast to legal entities like companies and statutory bodies. In other words, ‘his livelihood’ can have reference only to natural persons and not to inanimate lifeless legal entities like cooperative societies. A doctor running a nursing home is carrying on a ‘business’ within the meaning of ‘trade or business’.
4. Where tenancy is for an agreed period, the landlord shall not be entitled to tender an application for eviction to the Rent Control Court before the expiry of such period.
5. No tenant shall be evicted on the ground of additional accommodation for personal use of the landlord where the hardship of the tenant outweighs the advantages of the landlord.
6. Where a tenant is evicted on the ground of bonafideneed for reconstruction, and having evicted the tenant, the landlord willfully neglected to reconstruction the building within such time fixed or extended by the Rent Control Court, the Court may impose a fine of Rs. 500/-. Upon failure of the landlord, the court may issue further directions regarding the reconstruction and may even put back the tenant in possession in appropriate cases or award the evicted tenant damages equivalent to the excess rent he has to pay for another building that he is occupying in consequence of the eviction.
The tenant so evicted shall have the first option to have the reconstructed building allotted to him with the liability to pay the fair rent. The wide powers under the proviso to S. 11 (4) (iv) include the powers even to permit the affected tenant, in appropriate cases to carry out the reconstruction if the landlord persists his unreasonable refusal to complete reconstruction.
C. Special Protection to identified tenants
The Act envisages special protection to certain identified tenants based on the nature of employment or profession.
(a) No order of eviction shall be passed against a tenant who is engaged in any employment or any class of employment notified by the Government as an essential service unless the landlord is himself engaged in any employment or class of employment which has been so notified and the landlord requires the building for his own occupation. It has been rightly held by K.K. Mathew, J. in Balanv. Gopalan Nair that a notification issued by the Government of Kerala declaring that the following tenants shall be deemed to be engaged in essential service for the purposes of the said section is not violative of the Constitution, and therefore valid.
(b) No order of eviction shall be passed in respect of any building which has been let for use as a recognised educational institution. However, no such protection can be thereby claimed where the institution in which the courses are conducted is unrecognized even if certain courses were recognized.
No tenant who has been in continuous occupation of a building from April 1, 1940 shall be evicted for bona fide occupation of the landlord or for occupation of any of the occupation by any member of his family dependent on him. However, this protection is not granted,
(a) where the landlord has been living in aplace outside the city, town or village in which the building is situated for a period of not less than five yearsbefore he makes an application to the Rent Control Court for being put in possession of the building, and
(b) requires the building bona fide for his own permanent residence or for the permanent residence of anymember of his family or
(c) the landlord is in dire need of a place for residence and has none of his own.
D. Right of restoration
Where an eviction was effected by the landlord for his own use, the tenant can seek a restoration of possession,
(a) If the landlord does not occupy it without reasonable cause within one month of the date of obtaining possession, or
(b) Having so occupied it, vacates it without reasonable cause within six months of such date.
But when the tenant fails without reasonable cause to make an application for restoration of possession within one month since the right accrued, then the procedure under S.4 relating to notice of vacancy to the Accommodation Controller shall apply.
E. Right not to be interfered with the amenities
The tenant has a right to not to be interfered with the amenities enjoyed by him. If any landlord cut off or withhold the amenities enjoyed by the tenant with a view to compel him to vacate the building or to pay an enhanced rent or without just and reasonable cause, to the satisfaction of the Accommodation Controller, the Accommodation Controller may pass such orders directing the landlord to restore the amenities and to pay compensation not exceeding Rs. 50/-. The provision concerning compensation requires revision.
F. Right to periodical maintenance
It shall be the duty of the landlord to attend to the periodical maintenance and necessary repairs of the building. If the landlord fails to attend to such maintenance or repairs to the building and amenities within reasonable time, the Accommodation Controller may direct on application by the tenant that such maintenance and repairs be attended by the tenant. The charges and the costs incurred may be deducted from the rent payable at an interest of 6% p.a.
G. Frivolous Petition
Where an application for eviction made by the landlord is frivolous or vexatious, the tenant shall be entitled to compensation. However, this provision has now become obsolete since the maximum compensation to be paid by the landlord to the tenant as per the statute is Rs. 50/-.The compensation payable should be augmented in tune with the changing times in accordance with the principle of compensatory costs under S. 35A and S.95 of CPC.
DUTIES OF TENANT
A. Duty to issue notice of vacancy
A tenant shall within 15 days of his vacating the building occupied by him, shall give a notice of it in writing to the Accommodation Controller.If the tenant puts another person in occupation of a building and does not reoccupy it within a period of three months, the tenancy is deemed to be terminated. The tenant is duty-bound to give the notice of such termination to the Accommodation Controller within 15 days of such termination. However, the tenant may, before the expiry three months, apply the Accommodation Controller reoccupy the building within a period of six months, and if such permission is granted, the tenancy may continue.
Any person contravening the aforementioned provision shall be punishable with fine which may extend to Rs. 2000 and in default to simple imprisonment which may extend to two weeks.
B. Duty to inform the particulars of the building
Every landlord and every tenant shall be bound to furnish to the Accommodation Controller, the Rent Control Court or any person authorized by it in that behalf, such particulars in respect of the building as may be prescribed under the Act. The particulars to be furnished are enumerated under S. 27 are enumerated in Rule 12 of the Kerala Buildings, Lease and Rent Control Rules, 1979.
C. Duty not to sublet without the consent of the landlord
The tenant shall not, without the consent of the landlord, transfer his right under the lease or sublet the entire building or any portion thereof if the lease does not confer on him any right to do so. The consent of the landlord should preferably in writing. Mere silence, inaction or lack of initiative on the part of the landlord in the absence of any positive action would not amount to an implied consent.
D. Duty not to destroy or to reduce the utility of the building
The tenant shall not use the building in such manner as to destroy or reduce its value or utility materially and permanently. However, effecting minor alterations without affecting the value or utility of the building shall not bea ground for eviction under S. 11 (4) (ii).
AN EVALUATION
The Rent Control Act is a self contained statute and is a complete code with regard to the rights and liabilities of the landlord and tenant. The rights and liabilities of the landlord and the tenants are to be governed by its provisions and not by the provisions of the Transfer of Property Act, 1882 or any other law. The provisions in this Act will prevail over the general law of the Landlord and the Tenant. The Rent Control Act lean unduly in favour of the tenants so much so that it creates a feeling that ‘fools build houses for wise men to live in’, which is dangerous. The courts should adopt a balanced approach in interpreting the provisions of this Act. The Rent Control Statutes were enacted in a period where there was acute shortage of accommodation and protection of tenants from exploitation of tenants was desirable. However the time has now changed and the so-called landlords today are really people who depend upon the rent of the property for livelihood; to designate them as ‘landlord’s itself is undesirable. The earlier concept of Rent Control Act as a beneficial legislation has changed over a period of time through judicial decisions and now it is a balanced piece of legislation which enumerates the rights and liabilities of landlord and tenant. As per the recommendation from the State Law Commission and in tune with the Model Rent Control Act, 1992, the Government of Kerala has drafted The Kerala Building Lease Bill, 2002 but the same has not yet been passed due to the pressures from various corners.
Reference:
1. Bobby Mani, Alex M. Scaria, Commentary on Rent Control Laws in Kerala, 2007 Edition, Em Tee En Publications, Kochi.
2. Dr. N. Krishnakumar, Land Laws in Kerala, 3rd Edition 2008, M T N Publications, Kochi.
3. www.manupatra.ac.in
4. www.keralalawsect.in