En­joy­ment of peace­ful ten­ancy a right

HT Estates - - HTESTATES -

Sec­tion 108A( c) of the Trans­fer of Prop­erty Act, pro­vides the covenant of quiet en­joy­ment of leased prop­erty by the lessee, pro­vided there is no con­tract to the con­trary be­tween the lessor and the l es­see and t he l es­see has been per­form­ing all his obli­ga­tions, in­clud­ing pay­ment of rent. In other words, peace is an over­rid­ing pre­rog­a­tive of ev­ery ten­ant.

Even sub­stan­tial in­ter­fer­ence is con­sid­ered a breach of quiet en­joy­ment. In 1869, in the mat­ter of Munee Dutt Singh ver­sus Wil­liam Camp­bell ( where t he l and­lord had in­ter­fered with the ten­ant by col­lect­ing rent from his sub­tenants) it was held that the land­lord’s act amounted to a breach. Fur­ther, in 1898, it was held that if a land had been let out for dry­ing tim­ber, the lessor could not use the ad­join­ing land in such a man­ner that pas­sage of air was blocked.

To put it sim­ply, when a ten- ancy is cre­ated, the ten­ant has a right to en­joy the premises peace­fully with­out in­ter­rup­tion or in­ter­fer­ence by the land­lord. How­ever, there are obli­ga­tions on the ten­ant as well. One such obli­ga­tion is reg­u­lar pay­ment of rent. But does that mean if the lessee stops pay­ing rent the land­lord can cut off the elec­tric­ity or wa­ter sup­plies?

In the mat­ter of Santosh Kumar Kr­ishna Kumar v Mis­ri­lal Nir malku­mar, in 1 9 8 2 t h e G u w a h at i H i g h Court held that elec­tric­ity is an es­sen­tial item. The court also held that dis­con­nec­tion of a ten­ant’s elec­tric­ity was a wrong­do­ing of griev­ous na­ture, and in such cases the court should is­sue an in­junc­tion. In Ram Chan­dra Bhag­wan Das rep­re­sented by Shri Bhag­wan Das Agar­wala v Pawan Kumar Agar­walla, in 1983, the court held that in a case of this na­ture, a manda­tory tem­po­rary in­junc­tion can be granted to re­store the sup­ply of es­sen­tial ser­vices like wa­ter sup­ply and elec­tric­ity. Af­firm­ing the above po­si­tion, in 1993, the Guwahati High Court, in the mat­ter of Ramji­lal Sharma & Anr v Pu­rushot­tam­lal Shar ma (HUF) granted an in­junc­tion di­rect­ing t he l and­lord t o re­store sup­ply of wa­ter to the leased premises. The land­lord would, how­ever, be en­ti­tled to mea­sures such as ter­mi­na­tion and da­m­ages and also evic­tion through the process of law. Equally, the lessee claim­ing breach of en­joy­ment would be en­ti­tled to an in­junc­tion to stop the land­lord’s con­tin­ued in­ter­fer­ence and also da­m­ages for breach of the covenant of quiet en­joy­ment.

Fur­ther, the lessee has no rem­edy against the lessor, if the en­joy­ment by the lessee is dis­rupted by the lessor un­der the com­pul­sion to com­ply with another law. In the mat­ter of Minto v Kalli Cha­ran, in 1867, where the lessee was evicted un­der the Land Ac­qui­si­tion Act, it was held that the lessee had no cause of ac­tion against the lessor. How­ever, in 1724, in the mat­ter of An­drews v Par­adise, where the act was that of the lessor him­self, it was held that the lessee has the right to sue.

T he c ovenant of quiet en­joy­ment pro­tects a lessee against the acts of a lessor but not against the acts of the third party. The in­ter­fer- ence, if caused, by the landl ord would be ac­tion­able against the land­lord ei­ther un­der the lease or un­der sec­tion 108 A (c) of the Trans­fer of Prop­erty Act. How­ever, if there was in­ter­fer­ence by a third party, such in­ter­fer­ence would be ac­tion­able against such third party alone and not the land­lord and un­der the law of tort.

Be­fore I ex­plain fur­ther, I will briefly ex­plain the mean­ing of a ‘tort’. A ‘tort’ is a civil ac­tion­able wrong against a party, with whom there is no con­tract and where da­m­ages are not de­fined. Most of the law of tort is judge-made and is not cod­i­fied. Es­sen­tially, what this means is that if the peace­ful or quiet en­joy­ment of a ten­ant was dis­turbed by a party other than the lessor, the lessee, may not have an ac­tion against the lessor but could pro­ceed to sue the third party in an ac­tion un­der tort of nui­sance.

IMAGESBAZAAR

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