The recent COVID-19 pandemic has shown us how most of the structures and laws created for normal functioning can be derailed and made dysfunctional in just a matter of days. In this time of distress, however, one of the most deeply impacted group has been the tenants. Apart from the loss of job and income most tenants are now facing the virulent threat of eviction by their landlords. In this article, the author will discuss the legal provisions dealing with the eviction issue in our country.
The purpose of a lease agreement entered between the landlord and tenant can be either of commercial nature or of residential nature. Since the laws dealing with land and allied topics are a part of List II of the Indian Constitution, the laws regarding the eviction of a tenant vary among the states. However, there are still certain provisions which are common across different states. The violation of any of these terms gives the landlord a valid ground for eviction. However, if the landlord forcibly evicts the tenants and it does not fall among the below-mentioned grounds then in such a case the tenant can approach the court to claim relief.
These provisions are mainly as follows :
- The tenant has violated the provisions of the lease agreement.
- The tenant is using his unlawful/illegal purposes or activities.
- The tenant has caused any permanent or other sort of damage.
- Failure to pay rent, subject to the different state laws.
- The landlord needs the property subject to the lease for bona fide use.
- To make alterations to the property requiring the tenant to move out.
It must be noted that these provisions are only of general nature and may vary according to the specific state acts dealing with the land laws. As we can see that the said laws are a bit complicated for the common understanding the Central government brought the draft Model Tenancy Act, 2019 which is supposed to be a guiding act for other states to enact the laws relating to eviction and other land matters in a uniform way.
Now, that we have discussed the provisions subject to which the tenant can be evicted by the landlord we now move on to discuss in cases of pandemic such as the coronavirus, how is the issue of non-payment of the rent is dealt with.
There are basically two doctrines to deal with the issue of non-payment of rent. The first doctrine is the doctrine of frustration. The doctrine of frustration basically deals with the situation where due to a supervening event, not under the control of either parties, the contract becomes impossible to perform and the contract thus becomes void. Now the tenants may claim that due to the pandemic, an event not under control of either parties, the contract becomes impossible to perform because of the lack of means available with the tenant to pay the rent. This reasoning is fallacious on two grounds, firstly the court in the case of Raja Dhruv Dev Chand vs Harmohinder Singh & Anr it was held that Section 56 is not applicable to lease deeds, moreover, the section requires that the obligation between the parties are not fulfilled, however in the case of a lease, the lease agreement is already completed and the question frustration of the contract does not arise.
Secondly, mere commercial impossibility or difficulty in fulfilling the terms of the contract is not enough to satisfy the requirement of section 56 of the Indian Contract Act. Another related doctrine is that of force majeure. This doctrine basically is a subset of doctrine of frustration, however, unlike section 56, the clause regarding force majeure needs to specifically included in the contract so as to ensure its application. This might be helpful in the case of commercial contracts where the parties clearly define their rights and obligations as tenants and landlords, however, in the case of individuals it is highly improbable that they might have foreseen the possibility of such a pandemic and therefore included a clause exempting rent or relaxing certain provision in case of a force majeures event. Another issue is that even if the lease agreement includes a clause regarding force majeures, it would only delay not waive of the rights unless specifically included in the terms of the lease.
The second doctrine deals with section 108(B)(e) of the Transfer of Property Act. The section is as follows “if by fire, tempest or flood, or violence of an army or of a mob, or other irresistible force, any material part of the property be wholly destroyed or rendered substantially and permanently unfit for the purposes for which it was let, the lease shall, at the option of the lessee, be void…”. Now the as we can see the essential element of the section is that the property should be affected by one of the calamities as described in the act. Now, even though the coronavirus may fall in the above-mentioned categories, it still does not qualify for “ rendered substantially and permanently unfit for the purpose”. Thus, we can see the doctrine fails in our case to get the non-payment of the rent remitted.
In this article we thus discussed the various provisions of the tenancy laws in India. We saw that even thought the tenants can be evicted by their landlords still there are some statutory guidelines which the landlord has to follow to evict his tenant. We also saw the contemporary issue of coronavirus and discussed one of the grounds of eviction i.e. non-payment of rent and discussed the potential solutions.
This article is authored by Eashaan Agrawal, student of BA LLB (Hons) at National Law University, Delhi.
Also Read – Rights of Tenants in India
