Saturday, February 6, 2016

EVICTION ORDER AFTER EXPIRY OF LEASE AND LICENCE PERIOD

EVICTION ORDER AFTER EXPIRY OF LEASE AND LICENCE PERIOD

A license is defined under Section 52 (Chapter VI) of the Indian Easement Act, 1882. The definition of license reads as follows: “Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license”.
Under Section 28 of the Registration Act, 1908, every document should be registered under Section 17 of the said Act, has to be presented for registration in the office of Sub-Registrar within whose sub-district the whole or some portion of the property to which such document relates is situate.
Under Section 55 (1) of the Maharashtra Rent Control Act, 1999, any agreement for Lease and License or letting of any premises entered into between the landlord and the tenant or the licensee as the case may be should be in writing and should be registered under the Registration Act, 1908.
The possession of a licensee is not a juridical possession but only an occupation with the permission of the licensor. While the actual occupation remains with the licensee, the control or possession of the property is with the licensor through his licensee.
Difference between Lease and Licence: The Deed of Lease, under lease or sub-lease creates an interest or transfer of an interest in the property in favor of the Lessee during the period of lease; while license is only a permission to use or occupy or enjoy the premises and to do certain things or acts which otherwise will amount to trespass. Therefore an agreement of lease and license under no circumstances can be charged with stamp duty under Article 36 of Schedule I of the Bombay Stamp Act”.
The Licensor (Owner of the flat) can file an application for eviction under Section 24 of the Maharashtra Rent Control Act, 1999 if the Licensee is not ready to vacate flat / premises after expiry of the Licence period.
In one of the High Court judgement Amit B. Dalal V/s Rajesh K. Doctor, the Writ Petition was filed by Petitioner under Sec. 24 of Maharashtra Rent Control Act 1999, the dispute was regarding flats given on lease and licence agreement but the said agreement not registered under registration Act. The competent authority directed petitioner to vacate the flat then Petitioner preferred revision which also rejected by Ld. Additional Commissioner, hence the Writ Petition filed in High Court the issue was regarding effect of non registration of agreement of Lease and Licence. ­Lease and Licence agreements do not require registration under Registration Act. Sec. 49 of registration Act, applicable only to documents u /s 17 of Registration Act or under Transfer of Property Act. Unregistered document which require registration u /s 55 of Registration Act can be read in evidence provided same is proved and same is otherwise admissible in evidence. WP dismissed.
What does Sec.24 of Maharashtra Rent Control Act, 1999 says? : Section 24: “Landlord entitled to recover possession of premises given on licence on expiry.... (1) Notwithstanding anything contained in this Act, a licensee in possession or occupation of premises given to him on licence for residence shall deliver possession of such premises to the landlord on expiry of the period of licence; and on the failure of the licensee to so deliver the possession of the licensed premises, a landlord shall be entitled to recover possession of such premises from a licensee, on the expiry of the period of licence, by making an application to the Competent Authority, and, the Competent Authority, on being satisfied that the period of licence has expired, shall pass an order for eviction of a licensee.
(2) Any licensee who does not deliver possession of the premises to the landlord on expiry of the period of licence and continues to be in possession of the licensed premises till he is dispossessed by the Competent Authority shall be liable to pay damages at double the rate of the licence fee or charge of the premises fixed under the agreement of licence.
(3) The Competent Authority shall not entertain any claim of whatever nature from any other person who is not a licensee according to the agreement of licence. Explanation: For the purposes of this section, (a) the expression “landlord” includes a successor-in-interest who becomes the landlord of the premises as a result of death of such landlord; but does not include a tenant or a sub-tenant who has given premises on licence; (b) an agreement of licence in writing shall be conclusive evidence of the fact stated therein”. The Rights of the Landlord / owner is protected by the said judgment.
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