As mentioned above, law relating to tenancy is governed by the Transfer of Property Act, 1882. Because of scarcity of accommodation and gradual high rise in the rents due to various factors, after the Second World War, the landlords were in a position to exploit the situation for unjustified personal gains to the serious detriment of the helpless tenants. Under these circumstances it became imperative for the Legislature to intervene to protect the tenants against harassment and exploitation by avaricious landlords and appropriate legislation came to be passed in all the States and Union territories where the situation required an interference by the Legislature in this regard. The topic of Transfer of Property other than agricultural land is covered by Entry 6 of List III to the Seventh Schedule to the Constitution. Therefore both States as well as Centre are empowered to legislate on the subject. In this scenario, different States have different Rent Acts, but there is no basic or fundamental difference in regard to the law of eviction of a tenant in any of the State Rent Acts and many of them by starting certain provisions with a non-obstante clause1have done away with the law engrafted in section 108 of the Transfer of Property Act, 1882.2
Thus, the law relating to tenancy is governed under the common law by the Transfer of Property Act. Accordingly, the rights and remedies of the landlord and tenant are governed by the law of Contract and the law governing property relations. Section 108 lays down the rights and liabilities of the lessor and the lessee. Section 111 provides various modes for determination of the lease. The moment the contract of tenancy between the lessor and the lessee comes to an end, by any of the modes mentioned in section 111, landlord has the right to repossess the rented premises and to get the tenant evicted. However, landlord's normal rights vested in him by the general law, thus, continue to exist till and so long they are not abridged by the special protective legislation, like different State Rent Acts.
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1. For example, section 14 of the Delhi Rent Control Act, 1958 starts with non-obstante clause.
2. Section 108 deals with rights and liabilities of lessor and lessee.
Therefore, it is apparent these State Rents Act, are nothing but social legislations meant for the protection of the needy and the weaker sections of the society. These State Rent Acts, make appreciable inroad on the freedom of contract because after the determination of the lease, tenant gets the protective shield under the aforesaid special protective legislation. However, it is pertinent to mention here that the protection does not create any vested right which can operate beyond the period of protection or during the period the protection is not in existence. When the protection does not exist, the normal relations of landlord and tenant come into operation. The theory of vested right, which may validly be pleaded in support of landlord's case will not be available to the tenant where the tenant undoubtedly had the rights and remedies under the protective legislation, to claim reliefs against the landlord, but lost the same, the moment the protection was taken away since the rights and remedies being not vested ones.
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All the State Rent Acts, by way of non-obstante clause in the respective provisions provide that despite the lease having been determined between the parties, no order or decree for recovery of possession of the rented premises can be made by any court in favour of the landlord against the tenant. Thus complete bar is put over repossession of the premises by the landlord. Therefore, in this way, the rent control legislations encroach upon the freedom of contract, because the tenant gets the protective umbrella under the special legislation of Rent Act, even on termination of the tenancy. Right of the landlord to seek eviction of the tenant under the general law, merely on terminating the tenancy stands suspended so long as and to the extent of protective legislation operates. However, this complete ban on the eviction of the tenant is lifted to some extent by providing certain grounds of eviction to the landlord under the Rent Act, on the basis of which application can be made in prescribed manner for recovery of possession of the premises for example, proviso to sub-section (1) of section 14 of the Delhi Rent Control Act, 1958.
Thus, the relationship of the landlord and tenant under the Transfer of Property Act, the basis of which is a contract, entered into between the parties, amounts to 'contractual tenancy', a term which does not find mention in any Indian Act or judgment of the Indian Courts. However, for the sake of convenience, the term has been often used to denote the tenancy under the Transfer of Property Act, so as to distinguish it from the statutory tenancy under the Rent Acts. A contractual tenant, under the Transfer of Property Act, becomes a statutory tenant, after the determination of lease, because such a tenant gets immunity from eviction due to non-obstante clause used in relevant provisions of different State Rent Acts. Such a statutory tenant cannot be evicted except on the grounds mentioned in the State Rent Acts.
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