Is it mandatory to register a tenancy agreement for less than 11 months under Maharashtra's rent control Act?

 According to the petitioner, since the registration of an agreement of the nature with which this Court is concerned in the present case, is required to be registered under the Registration Act, all the provisions of the Registration Act, including Sections 17 and 18 thereof would squarely apply. Since the period for which possession of suit shop was given to the respondent under the said agreement was only 11 months and clearly less than one year, such an agreement was not compulsorily registrable under Section 17 of the Registration Act and that the registration of such an agreement was only optional under Section 18 thereof.

12. A perusal of the above quoted Section 55 of the said Act would show that it opens with a non-obstante clause, which provides that notwithstanding anything contained in the said Act  or any other law for the time being in force, any agreement between the landlord and tenant after commencement of the said Act has to be in writing and shall be registered under the Registration Act, 1908. The manner in which the non- obstante clause is framed, the registration of such an agreement in writing is mandatory and it is required to be registered under the Registration Act. The non - obstante clause is followed by the words "any other law for the time being in force". These words would take into their sweep the Registration Act also, since it was in force when the aforesaid Act came into being. Therefore, notwithstanding the fact that an agreement between the landlord and tenant for a period less than one year would not be compulsorily registrable under Sections 17 and 18 of the Registration Act, yet, such an agreement for less than one year shall have to be registered under the Registration Act. Any other interpretation of such a non - obstante clause in Section 55(1) of the said Act would amount to adding words into the same like "any other law for the time being in force except requirements of Section 17 r/w 18 of the Registration Act". Such adding of words cannot be resorted to, when a plain reading of the said provision, particularly the non - obstante clause shows that every agreement between the landlord and tenant after commencement of the aforesaid Act shall be in writing and must be registered.

13. The emphasis placed on words "shall be registered under the Registration Act, 1908", placed by the learned counsel for the petitioner to contend that the registration of such an agreement for a period less than one year was optional under Section 18 of the Registration Act, cannot be accepted.

Bombay High Court

Anwar Noormohammed Pirani vs Santosh Gajanan Naskulwar on 3 December, 2019

Bench: Manish Pitale

 Writ Petition No. 5650 of 2018
Citation: 2020(6) MHLJ 257

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Whether the court can impound photocopy of the tenancy agreement?

 By these writ petitions, the original plaintiff as well

as defendant No.1 have challenged judgment and order dated

03/10/2019, passed by the District Judge-5, Nagpur, in

Miscellaneous Civil Application No. 208 of 2019, whereby

appeal filed by the original defendant No.1 has been allowed

and an agreement of tenancy has been impounded to pay

requisite stamp duty and penalty thereon and thereafter, it is

directed that the said document be exhibited for collateral

purpose. It is significant that the said document is not original

agreement dated 26/10/1999, but, a photo copy thereof.

17. Therefore, the position of law appears to be

absolutely clear to the effect that photo copy of a document

cannot be treated as an “instrument” under Section 2(l) of the

Maharashtra Stamps Act, 1958 and no order for impounding

such document can be passed. Thus, the Court below erred in

passing the impugned order directing that the document in

question i.e. photo copy of alleged agreement dated

26/10/1999, was to be impounded for payment of requisite

stamp duty and penalty thereon. As a result, the consequent

direction for exhibiting the document for collateral purpose

after payment of requisite stamp duty and penalty can also not

be sustained.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH AT NAGPUR

Writ Petition No. 8245 of 2019

Shri Pradeep Shyamrao Kakirwar, Vs.  Dr. Smt.Seema Arun Mankar,

CORAM : MANISH PITALE, J.

PRONOUNCED ON : 27.04.2020

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Whether court can dismiss eviction suit on ground that rent deed was not registered?

Maharashtra Rent Control Act, 1999 - Sec. 15 - Arrears of rent - Suit for eviction Decree - High Court setting aside decree - Validity - No dispute regarding relationship of landlord and tenant between parties - Admission of part of tenant about amount of rent payable by him - Admission of tenant about not paying rent right from day one when tenancy commenced - High Court setting aside decree on ground that rent deed was not registered document and as such not admissible in evidence - Not proper - Admission of party in proceedings either in pleading or oral is best evidence and same does not need any further corroboration - Held, Dismissal of suit simply on ground that rent deed was not registered cannot be accepted and liable to be set aside             IN THE SUPREME COURT OF INDIA [Bombay High Court]
(Before T S Thakur ; F M Ibrahim Kalifulla, JJ.) CIVIL APPEAL NOS. 5316-5318 OF 2012 

Ahmedsaheb
Vs
Sayed Ismail

Citations: 2012(8)SCC516; 2012(6)JT581; 2012(6)SCALE505; 2012(6)SCR984;

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Chhatis HC: Eviction suit is not liable to be dismissed if tenancy agreement is not registered

Reading of Section 4 of the Act of 2011 speaks about the tenancy agreement. It shows that notwithstanding anything contained in Section 107 of the Transfer of Property Act, 1882 (Central Act 4 of 1882), the lease shall not be created on rent of any accommodation except by in writing and the tenancy which is continuing before the commencement of the Act, the existing agreement is required to be filed before the Rent Controller and in case of no agreement is existing, the same is required to be executed and thereafter to be filed before the Rent Controller. Reading of Section 4 and the non-compliance thereof, no consequence is provided in the Act of 2011 qua eviction proceeding.

When we turn to the objection made by tenant it contains the pleading of non-registration of the tenancy agreement as per Section 4 of the Act of 2011. In view of the the principles as has been stated above, this Court is of the opinion that for noncompliance of Section 4 of the Act of 2011, the landlord cannot be non-suited as it is only directory in nature.

IN THE HIGH COURT OF CHHATTISGARH

WP (227) No. 2 of 2018

Decided On: 09.08.2018

Utsav Dey Vs. Sushil Kumar Bhadraja and Ors.

Hon'ble Judges/Coram:

Goutam Bhaduri, J.

Citation: 2019(1) RCR(Rent) 188

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Whether a person can be treated tenant on basis of inspection report?

It must be noted that simply because a man is in occupation over a particular property he cannot be termed as a tenant or a licensee on the basis of his occupation. A tenancy like any other fact is a fact which is to be proved by evidence. A person cannot be held to be tenant merely on basis of inspection report showing him to be in possession of the disputed property when neither any lease deed nor any rent note or any other piece of paper was placed on record in support of the contention.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

S.A. No. 372 of 1993

Decided On: 01.07.2008

 Francis  Vs.  Andrew and Ors.

Hon'ble Judges/Coram:

A.P. Bhangale, J.

Citation: 2008(6) MHLJ 450

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When burden of proof is on defendant to prove that he is tenant?

 The entire case of the appellant is based on the proposition that as he was occupying the suit premises since 1979, it was with the permission of the landlord and as he was allowed to stay on the suit premises, so it is to be inferred that rent was paid by him and accepted by the landlord. It is contended that the appellant has proved that he is a tenant then ground of encroachment as pleaded by the plaintiff goes away and the plaintiff has no right to claim possession on the ground of encroachment and so no relief either of perpetual injunction or mandatory injunction or possession can be granted in favour of the appellant. Thus, foundation of the case of the appellant is that he is a tenant of the respondent. This fundamental fact is required to be proved. Question is whether this fact can be proved in the absence of any documentary or sufficient oral evidence?

13. Admittedly, no documentary evidence either of rent receipt or any agreement is produced by the appellant in both the suits. The appellant tried to prove this fact with the help of these three witnesses. However, he did not mention anything about obtaining the suit property with the help of any middle-man. Had this suit property been obtained with the help of Mr. Bhandilkar, then this fact ought to have been mentioned by the appellant in the written statement. Oral evidence should pass a test of credibility. It is expected that party should take a consistent stand to build up his case from the initial stage of the suit. Admittedly, the respondent had let out few shops or premises near the suit premises, to other persons. However, that evidence will not establish the fact that therefore the suit premises was also let out to the appellant by the respondent-landlord. The fact of possession is not challenged as there is a prayer of the possession and relief to that extent is prayed by the plaintiff. Thus, the fact that the appellant is in possession of the suit property since 1979 is itself not helpful to the appellant to establish tenancy. Long possession or even permissive long possession cannot itself establish a person is a tenant of the landlord. It can be only said that he was allowed to stay or remain on the suit property for some period and for that period, his possession was tolerated and therefore he cannot be labelled as an encroacher for that period. As soon as a permission is withdrawn, the status of an occupant is converted into an encroacher. Thus, in the absence of any tenancy, no legal right is created in favour of the appellant against the respondent.

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 504 of 1991, 

Decided On: 05.10.2012

Pandurang Dharma Gaikwad  Vs. Mahamudmuya Ahmadsaheb Patil

Hon'ble Judges/Coram:

Mrs. Mridula Bhatkar, J.

Citation: 2013(2) MHLJ 949

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Whether tenant is bound to pay stamp duty on copy of lease agreement if it is insufficiently stamped?

 Countering the said submissions, Mr. Asan Ali Khan, learned Counsel for the respondent submitted that when admittedly Exs.R1 to R8 are copies of the originals of the lease deeds executed between the petitioner and the respondent and they are for a period not exceeding 11 months, they are not compulsorily registrable and as such they can be looked into for collateral purposes. According to the learned Counsel, the copy available with the respondent need not be stamped and the original available with the petitioner alone are liable to be stamped in accordance with Indian Stamp Act; even if it is insufficiently stamped, it can be looked into for collateral purpose, namely, to ascertain the address of the premises, which is leased out and the question of insufficiency of stamp duty can be gone into only at the time of final disposal of RCOP. 
At the outset it has to be pointed out that when an agreement of lease is executed between the landlord and tenant, normally, lease agreement is prepared in duplicate i.e., both are originals, signed by both the landlord and tenant. If that being so, it cannot be contended by the respondent that the agreement available with the tenant is only a copy and not the original and therefore it need not be sufficiently stamped. Therefore, the contention of the learned Counsel for the respondent that Exs.R1 to R8 need not be stamped as contemplated in the Indian Stamp Act but the original agreement available with the petitioner alone has to be stamped in accordance with Indian Stamp Act cannot be countenanced.
IN THE HIGH COURT OF MADRAS

C.R.P. (PD) No. 853 of 2010 and M.P. No. 1 of 2010

Decided On: 07.07.2010

V. Jayaraman Vs. K.A. Ubaidur Rahman

Hon'ble Judges/Coram:

K. Mohan Ram, J.

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Whether judgment passed by court relating to nearby premises can be relied on for determining mesne profits?

This Court in Chameshwar Lall Sood’s case (supra)
was dealing with eviction of premises, which are situated at a
distance of about less than 200 metres from the premises in
question and this Court on the basis of evidence produced by
the landlord fixed the use and occupation charges @ Rs.250/per
sq. feet.
25 In the present case, even though the landlord has
not produced any such evidence but then he is well within his
right to place reliance on the decisions rendered by this
Court which can definitely be taken into consideration while
fixing the mesne profits and use and occupation charges.

IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
CMP Nos. 8489/2017 and 8471/2018
in C.R. No. 196/2017 

Date of decision : 28.12.2018

Amarjit Singh Bedi  Vs.  Sanjay Kuthiala and ors. 

Coram
 Mr. Justice Tarlok Singh Chauhan, Judge.

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Whether civil suit will be barred if tenancy agreement is not registered?

 This Court, in the matter of Raj Prasanna Kondur v. Arif Taher Khan and Ors., reported in MANU/MH/1264/2004 : 2005 (4) Bom.C.R. 383, has held that the right of a landlord under Section 24 to get a person evicted from the premises on expiry of license is not curtailed in any manner on account of absence of the agreement being in writing or registered, as contemplated by Section 55 of the Act.

Section 55 of the Act nowhere provides for "any other consequence" for failure on the part of the landlord to get the agreement drawn in writing or getting the same registered, except those provided in Sub-section (3) of Section 55. In other words, on account of failure of the landlord to get the agreement registered, he cannot be precluded or prohibited from presenting a plaint in Civil Court seeking recovery of rent. The consequence of failure to record the agreement in writing and to get it registered, would put the tenant in an advantageous position at trial, as his contention as regards the terms and conditions of tenancy will have to be accepted, unless proved otherwise. Section 55 of the Act nowhere puts an embargo in respect of entertain ability of any civil action by the landlord either for recovery of rent or for recovery of possession of the tenanted premises on account of his failure to secure an agreement of tenancy in the form, as contemplated by Section 55(1) of the Act.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Civil Revision Application No. 7 of 2011

Decided On: 19.04.2011

Shashikant  Vs.  Nirmala

Hon'ble Judges/Coram:

R.M. Borde, J.

Citation:2011(5) MHLJ 251:2011(3) ALLMR 832

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Whether agreement will come into existence even if it is to be performed at future date?

Mr. Seervai contended that the said leave and licence agreements had not come into effect/existence. He based the submission on the fact that the agreements had been terminated prior to the commencement of the terms thereof.

10. The submission is not well founded. The agreements were executed by both the parties. The mere fact that they were to be performed at a later date cannot possibly lead to the conclusion that the agreements had not come into existence and that the parties were not bound by the terms thereof. There is a fundamental difference between an agreement coming into existence and the date for the performance thereof. Merely because obligations under an agreement are to be performed at a future date, it does not follow that the agreement has not come into existence upon the execution thereof or upon the terms and conditions thereof being agreed upon.

IN THE HIGH COURT OF BOMBAY

C.P. No. 898 of 2008

Decided On: 12.02.2009

 Corporate Management Council of India P. Ltd. Vs.  Lonza India P. Ltd.

Hon'ble Judges/Coram:

S.J. Vazifdar, J.

Citation: 2009(3) ALLMR 770

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Whether partnership firm will become tenant if tenancy agreement is with its one partner?

 It has been claimed by respondent No. 1 that there was a oral tenancy that had come to existence between the appellant and the aforesaid partnership firm of which the said Pramod Mahure and the respondent No. 1 were partners. In order to support the said assertion, respondent No. 1 has heavily relied upon the fact that the deposit of the amount of Rs. 40,0000/- for the said suit shop was paid from the joint account of Pramod Mahure and respondent No. 1, as also the fact that cheques towards monthly rent were paid to the appellant from the account of the partnership firm. It is the contention of the learned Counsel appearing on behalf of respondent No. 1 that these circumstances proved the fact that an oral tenancy had come into existence in favour of the said partnership firm.

18. In this regard, reliance placed by the learned Counsel appearing on behalf of the appellant on the judgment of the Hon'ble Supreme Court in the case of Hiralal (supra) is justified. In the said judgment, the Hon'ble Supreme Court has held as follows;

"7. We are inclined to agree with this submission of the landlord. The initial tenancy was only an oral tenancy. Nevertheless there were two witnesses who deposed that the original tenancy agreement was only between the petitioner and the respondent. At that time, admittedly, there was no question of Balkunj being the tenant in respect of any portion of the premises. All that the respondent says is that subsequently cheques were being issued in the name of Balkunj also and that this must be taken to lead to an inference that the petitioner had accepted Balkunj as its tenant. It is very difficult to accept this argument. It is no doubt true that the rent has been paid by two cheques since November 1976 but the mere payment of rent by two cheques, in the circumstances of this case, cannot mean that there were two tenancies. The landlord was entitled to a rent of Rs. 600 p.m. and so long as he got this amount, it was immaterial for him whether the amount was paid in a lumpsum or by one cheque or more than one cheque and who the makers of the cheques were. It is not unusual to come across cases where a tenant pays rent not by a cheque drawn by himself but by a cheque drawn by some other concern in which he has an interest such as a partnership concern, a limited company of other entity in which he is interested. So, the mere fact that for some reasons the respondent chose not to issue a single cheque for the rent of Rs. 600/- but that he gave two separate cheques, one for Rs. 250/- drawn by himself and one for Rs. 350/- drawn in the name of Balkunj cannot lead to an irresistible conclusion that the tenancy was created in favour of Balkunj with the concurrence of the landlord. the letter dated 26-11-78 far from "clinching" the respondent's claim, as held by the High Court, does not in our view improve the tenant's case at all. It only evidences the fact that the landlord was receiving the cheques issued in the name of the trust in discharge of the respondent's obligation to pay the rent of Rs. 600 p.m. It is also true that, since the landlord was also occupying a part of the ground floor premises, he might have been aware that certain activities of Balkunj were being carried on in the hall. But this can only mean that the landlord permitted the tenant to use a portion of the premises let out for running the activities of the trust. even assuming that, standing by themselves these two facts might have been sufficient to draw any such inference as is suggested, the two letters of 5-8-77 and 15-1-78 place the matter beyond all doubt. the landlord categorically asserted in these letters that he does not recognize Balkunj as his tenant and that the respondent alone was his tenant. There was no reply to these letters for the respondent. In these circumstances, there can be no doubt at all that the premises had been let out only to the respondent by the petitioner and that Balkunj cannot be considered to be a tenant of the premises or any portion thereof."

19. Thus, it would be evident that merely because cheques towards rent were paid from the account of the partnership firm, it would not lead to the conclusion that the said firm became the tenant of the appellant. The position of law laid down in the aforesaid judgment also answers the contention raised on behalf of respondent No. 1 that since the appellant was aware that business of partnership firm was being conducted from the suit shop, it was the firm which was the tenant. No such conclusion could be drawn from the facts and circumstances of the case and therefore, the theory of oral tenancy created in favour of the partnership firm raised on behalf of respondent No. 1 is unsustainable and it is not supported by the evidence and material on record.

20. The circumstances that point towards the fact that tenancy was indeed created only in the name of Pramod Mahure are; the aforesaid agreement dated 01-04-1991 (Exhibit-53) shows that the tenancy was created in the name of Pramod Mahure individually, the respondent Nos. 2 to 4 categorically took a stand that tenancy was in the name of Pramod Mahure and that they specifically stated in their written statement of having surrendered their rights in respect of the tenancy, respondent No. 1 failed to produce a single rent receipt in the name of the partnership firm, the appellant promptly sent reply denying the claim made by respondent No. 1 in his notice about tenancy being in favour of the partnership firm and the appellant returned all the cheques towards rent sought to be deposited by respondent No. 1 on the basis that the tenancy was created in favour of the partnership firm. All these circumstances clearly indicated that the tenancy was created only in favour of Pramod Mahure and that the claims of oral tenancy made by respondent No. 1 in respect of the partnership firm, were wholly unsustainable. The findings rendered by the appellate Court while reversing the decree granted by the trial Court, are found to be perverse and they are based on erroneous appreciation of the evidence and material on record, as also the law applicable to the same.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 79 of 2008

Decided On: 10.04.2018

 Chandrasen Gulabchand Shah  Vs.  Ganesh Shrawanji Iche and Ors.

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2018(6) MHLJ 152

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Whether unregistered rent note can be used for collateral purpose?

It is true that the non-registration of the rent note does not debar the use of a document that is compulsorily registerable for collateral purposes but that aspect would in the instant case pale into insignificance keeping in view the state of pleadings on the question of month of tenancy and the legal implications thereof.

Supreme Court of India

Shibani Basu vs Sandip Ray on 26 November, 2010

Bench: Markandey Katju, T.S. Thakur

Citation;AIR 2011 SC 509

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Whether obligation to get tenancy agreement is continuous in nature?

I quite see that, issue of limitation is a mixed question of fact
and law and the adjudication necessarily can only be done by the fact
The complaint petition illustrate, lastly on 22.3.2007 the
finding Court.

complainant/ respondent No.2 urged the petitioners for execution of the
document, which has not been complied with. The nob- abstant clause in
Section 55, which is a special statute in itself, is indicative that provisions
of Criminal Procedure Code and particularly Section 468 thereof will not be
The requirement of Section 55 is, so long as the tenant/
applicable.
respondent No.2 occupies the premises, the obligation flows to the
petitioners to get the document executed and registered. The offence,
therefore, certainly continues. Section 2(n) of the Criminal Procedure code
contemplate offence which constitute an omission of law for the time being
in force. It also includes any act in respect of which a complaint may be
made.
13.
Law requires the petitioners, in fact, for each continuation of
the lease period to get the document registered, which, as indicated,
having cast an obligation, failure warrants the action. There cannot be a
contest on the legal position indicated in the matter of Udai Shankar
Awasthi Vs. State of Uttar Pradeshi & anr. [ (2013) 2 Supreme Court
Cases 435 ] as referred in para 46 thereof, dealing with a reported case in

the matter of Kishan Singh Vs. Gurpal Singh ( 2010 (8) SCC 775 ). The
complaint petition of the respondent No.2, even if is filed after eviction
proceedings by the petitioners, however, the inherent right in the
respondent No.2 to take recourse to Section 55 of the Rent Act is not
whittled away or foreclosed. The complaint petition cannot be branded as
arduous proceedings.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.682 OF 2011

Rohit Dinesh Photographer Vs  The State of Maharashtra



CORAM: K.U. CHANDIWAL, J.
DATED: 25th April, 2013.
Citation;2014(5) MHLJ317

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Whether requirement of registration of tenancy agreement is retrospective in nature?

 Mr. Apte, the learned counsel for the petitioner, firstly submits that the agreements of leave and licence dated 1st May, 1996 and 1st April, 1998, though executed in writing, are not registered and hence not admissible in evidence in view of Section 55 of the Act. Section 55 of the Act reads as under :-

Section 55. Tenancy agreement to be compulsorily registered. -

(1) Notwithstanding anything contained in this Act or any other law for the time being in force, any agreement for leave and licence or letting of any premises, entered into between the landlord and the tenant or the licensee, as the case may be, after the commencement of this Act, shall be in writing and shall be registered under the Registration Act, 1908.

(2) The responsibility of getting such agreement registered shall be on the landlord and in the absence of the written registered agreement, the contention of the tenant about the terms and conditions subject to which a premises have been given to him by the landlord on leave and licence or have been let to him, shall prevail, unless proved otherwise.

(3) Any landlord who contravenes the provisions of this section shall, on conviction be punished with imprisonment which may extend to three months or with fine not exceeding rupees five thousand or with both.

A bare perusal of sub-section (1) of Section 55 of the Act shows that only the agreements which have been entered into between a landlord and a tenant or a licensee after the commencement of the Act are required to be in writing and are also required to be registered under the Registration Act, 1908. The Act came into force only on 31st March, 2000 by virtue of the notification issued under sub-section (3) of Section 1 of the Act and has no retrospective operation.

Bombay High Court

Anjali Jayant Gandhi vs Ramesh Gopal Vagholikar on 16 July, 2004

Equivalent citations: 2005 (2) BomCR 933, (2005) 107 BOMLR 812, 2005 (1) MhLj 537

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