Can you recover the Rent and Possession of your Premises from Tenant / Licensee if such Agreements are not registered?

By Adv. Sanjeev Kanchan

Under Section-55 of Maharashtra Rent Control Act, 1999 with effective from 31/03/2000, any Agreement for Leave & Licence or Tenancy shall be in writing and shall be registered. Under Sub-Section-2 of Section 55, the responsibility of getting such Agreement registered shall be of the Land-Lord and in the absence of written registered Agreement; the contents of the Tenant or Licensee about terms and conditions shall prevail unless proved other.
Under Section 55(3) of the Rent Act, any Landlord contravenes the above provision on conviction is punished with imprisonment up to 3 months or with fine up to Rs. 5,000/- or both.
As stated above Rent Act of 1999 has made it compulsory for the Registration of Tenancy and Leave & Licence Agreements. Because of cumberson provision of Registration and waste of time taken therein, it is not uncommon that many such Agreements are not registered even today.
On effect of unregistered Agreement for Leave & Licence, in the recent case of Raj Prasanna Kondur v/s Arif Taher Khan & Others, the Bombay High Court has held as below:
In the absence of the registered written agreement, nevertheless, once the agreement is in writing and even though it is not registered, the same, as regards the facts stated therein, would be deemed to have been proved conclusively on production of the agreement itself.
Bombay High Court has further held that in the absence of registration or even the agreement being not in writing that would not render the license to be invalid. However, the existence of license does not depend upon its record in writing or registration thereof. It depends upon the availability of permission by the landlord to another person to use the landlord’s premises for consideration and moment those factors are established, the person using the premises would be the licensee within the meaning of the said expression under the said Act. Obviously, the written record in relation to the agreement of licence would be the conclusive proof about the terms of licence and in case of registration of such agreement would help the landlord to avoid the consequences stipulated under Section 55(2) and (3) of the Rent Act. This is apparent from the definition of the term “Licensee” under Section 7(5) of the said Act which nowhere requires the license granted to occupy the premises for license fee or charge to be necessarily in writing or the agreement to have been registered.
On unregistered Tenancy Agreement, a case came before Bombay High Court called Shashikant Ramdeo Kulkarni v/s Nirmala Vasant Gore which was decided on 19/04/2011.
In the above case, Plaintiff instituted suit claiming recovery of an amount of Rs.39,000/- towards arrears of rent against the defendant. It was the contention of Plaintiff that defendant is a tenant in respect of residential premises which were let out for monthly rent of Rs. 1,500/- per month. Defendant occupied the premises since December 2006, however, it was contended that since May, 2007, for a period of about 26 months, defendant has failed to pay the rent. As such, plaintiff is claiming recovery of amount towards arrears of rent.
The suit claim was opposed by the defendant by presenting his written statement. Defendant has denied oral agreement of tenancy. Defendant, as such, requested the Court for dismissal of the suit.

The High Court has held that Section 55 of Maharashtra Rent 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 entertainability 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(I) of the Act.
Reading the above two Judgments, it is clear that although the Agreement for Leave & Licence or Tenancy are not registered, your right to collect the Rent and get the Premises back from Licensee or Tenant is not affected. However, all the Landlords and Flat owners should take the trouble of registration of Tenancy and Leave & Licence Agreement to avoid unnecessary penalty or imprisonment as contemplated in Section 55(3) of Maharashtra Rent Act, 1999.