Two of the most frequently litigated grounds of eviction under the Rajasthan Rent Control Act, 2001 punish a tenant who deals with the premises behind the landlord's back. Clause (e) of Section 9 strikes at sub-letting — assigning, sub-letting or otherwise parting with possession without written permission — while clause (g) strikes at change of user — turning residential premises to commercial use. Both rest on the same premise: statutory protection is given to the tenant for his own occupation and for the purpose for which the premises were let, not as a transferable commercial asset. This note works through the statutory text, the crucial exclusive-possession presumption built into clause (e), the onus rules settled by the Supreme Court, and the limits of the change-of-user ground.
The two grounds in the statute
Section 9 sets out an exhaustive list of grounds on which a Rajasthan Rent Tribunal may order eviction, examined as a whole in eviction of tenant: grounds. Clause (e) provides for eviction where “the tenant has assigned, sub-let or otherwise parted with the possession of the whole or part of the premises without the written permission of the landlord.” It is followed by an Explanation of decisive evidentiary importance: “If it is established that some person other than the tenant is in the exclusive possession of the whole or part of the premises, it shall be presumed that the tenant has either sub-let or parted with the possession of the whole or part of the premises, as the case may be.” Clause (g) is the change-of-user ground — eviction where “the premises were let out for residential purposes but have been put to commercial use wholly or partially.” The two clauses share a common philosophy: the tenant holds the premises for his own use and for the let purpose, and may not, without the landlord's written consent, transfer occupation to a stranger or alter the character of the user. Both grounds presuppose that the Act applies to the premises at all — the threshold questions of coverage are dealt with in application and areas covered.
What sub-letting means in law
Sub-letting is not made out merely because a third party is seen on the premises. The classic definition was given by the Supreme Court in M/s Bharat Sales Ltd. v. Life Insurance Corporation of India, (1998) 3 SCC 1: a sub-tenancy comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession of it. Two ingredients must coexist — parting with possession in favour of a third party who holds it exclusively, and a consideration (rent or its equivalent) for that arrangement. The Court reiterated this dual requirement in Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar, (2010) 1 SCC 217 (AIR 2010 SC 603), distilling the law into a structured framework: the landlord must prove (i) parting with exclusive possession in favour of a third party, and (ii) that it was without consent and for compensation. The emphasis on exclusive possession matters because mere permissive user — a licensee, a guest, a servant or a relative occupying with the tenant — does not transfer legal possession and therefore is not sub-letting. The word in the statute, “parted with possession,” means parting with legal possession, that is, possession coupled with the right to exclude others.
Parting with possession: divesting the right to possess
The phrase “otherwise parted with the possession” in clause (e) is wider than a formal sub-lease but narrower than mere physical presence of another. In Resham Singh v. Raghbir Singh, AIR 1999 SC 3087, the Supreme Court held that to constitute parting with possession the tenant must divest himself not only of physical possession but also of the right to possession — there must be a divestment or abandonment of the right to control and exclude. A tenant who retains the legal right to possess, and merely allows another to use the premises along with or under him, has not parted with possession. This distinction is the tenant's principal defence: occupation by a family member, an employee posted to run the business, a temporary licensee, or a person sharing under the tenant's control does not amount to sub-letting because the tenant keeps the reins of legal possession. The enquiry is therefore qualitative, asking who controls the premises, not merely who is physically present in them at a given moment.
The exclusive-possession presumption and the shifting onus
The Explanation to clause (e) is what makes the Rajasthan ground formidable. Once the landlord establishes that some person other than the tenant is in exclusive possession, the statute itself presumes sub-letting or parting with possession. This codifies the onus rule the Supreme Court laid down in Bharat Sales: direct proof of a clandestine sub-tenancy is rarely available because no tenant who sub-lets in breach of the Act will admit it, so the landlord need only prove the third party's exclusive possession; from that fact the law infers both the parting and the monetary consideration behind it. The burden then shifts to the tenant to explain the nature of the third party's occupation and to prove that he himself continues to hold legal possession. The same allocation was applied in Nopany Investments (P) Ltd. v. Santokh Singh (HUF), (2008) 2 SCC 728 (AIR 2008 SC 673), where the Court confirmed that the initial onus is on the landlord to show exclusive possession of a third party, after which it is for the tenant to rebut the inference. The practical effect under the Rajasthan Act is that a landlord who produces evidence of a stranger running the shop, paying the electricity dues in his own name, or holding licences for the premises, discharges his burden and forces the tenant to come forward with a credible, lawful explanation.
Inferring monetary consideration
Consideration is a necessary ingredient of sub-letting, yet it is the element hardest to prove directly, since the money rarely passes through documents. In Bharat Sales the Supreme Court resolved this by holding that where it is established as a fact that the tenant has parted with part of the demised premises to another who is in exclusive possession, the court may legitimately infer that the transaction was for monetary consideration. The landlord is not required to lead affirmative proof of the rent received by the tenant from the sub-tenant; the inference of consideration flows from the proven fact of exclusive possession. This complements the statutory presumption in the Explanation: the landlord proves exclusive possession, and both the parting and the consideration are then presumed against the tenant. Celina Coelho Pereira applied the same reasoning, treating documentary indicators such as sales-tax registrations, trade licences and business records standing in the third party's name as cogent material from which exclusive possession, and hence sub-letting, could be inferred.
Partnerships and genuine arrangements: not every third party is a sub-tenant
The flip side of the presumption is the tenant's defence that the third party's presence is a genuine, lawful arrangement under which the tenant keeps legal possession. The leading authority is Helper Girdharbhai v. Saiyed Mohmad Mirasaheb Kadri, AIR 1987 SC 1782 (1987) 3 SCC 538, where the Supreme Court held that a tenant who inducts partners and allows a partnership firm to carry on business in the demised premises, while he himself remains a partner and retains legal possession, does not thereby sub-let. Whether the partnership is genuine must be judged on the facts of each case in the light of ordinary partnership principles. The corollary is equally settled — a sham partnership floated only to camouflage a sub-letting will be seen through, and the veil lifted to expose the real transaction. Dipak Banerjee v. Lilabati Chakraborty, (1987) 4 SCC 161, illustrates the protective side of this rule: there, in the absence of a finding of exclusive possession or of payment of money, the Supreme Court refused to uphold a finding of sub-letting, underlining that both exclusive possession and consideration must be established (or presumed from proven exclusive possession) before a tenant loses statutory protection.
The complete defence: written permission
Clause (e) bites only where the assignment, sub-letting or parting with possession is “without the written permission of the landlord.” Written consent is therefore a complete answer to the ground. The requirement of writing is strict: oral permission, acquiescence, or the landlord's mere knowledge of the third party's presence does not satisfy the clause, though long-standing acceptance of rent with full knowledge of a sub-tenancy may, on appropriate facts, be argued as waiver. A prudent tenant who wishes to bring in a partner, assign the tenancy, or let out part of the premises must obtain the landlord's permission in writing before doing so; a tenant who relies on informal indulgence does so at his peril, because the statutory presumption can be triggered the moment exclusive possession by a stranger is shown. The interaction between this ground and the obligations attaching to the tenancy is best read alongside the statutory vocabulary explained in definitions, where the meaning of “tenant”, “landlord” and “premises” is set out.
Change of user: the scope of clause (g)
Clause (g) addresses a different mischief — not who occupies the premises, but for what purpose they are used. Where premises were let out for residential purposes but have been put to commercial use, wholly or partially, the landlord may seek eviction. The clause protects the landlord's legitimate interest in the character of his property and in the use originally contracted for; a residential flat converted into a shop, a godown, a coaching centre or an office defeats the purpose for which possession was given. The clause is expressly attracted even by partial commercial use, so a tenant cannot escape by arguing that he continues to reside in part while trading in the rest. The animating principle is that the tenancy is moored to the purpose of letting, and a unilateral change of that purpose, contrary to the contract and the recital in the rent note, exposes the tenant to eviction.
Limits and proof of change of user
Change of user is read with a sense of proportion. The landlord must establish a real, established conversion of residential premises to commercial use, not a trifling or incidental activity. A tenant who attends to occasional work from home, keeps professional papers, or carries on an activity that does not change the essential residential character of the premises is not necessarily within the clause; the Tribunal looks at the substance and dominant character of the user rather than at a technical departure from the rent note. Conversely, where the premises have in substance been turned into a commercial establishment, the protection of the Act is forfeited. The change-of-user ground also overlaps in spirit with the misuse and nuisance grounds in Section 9 — both insist that the tenant hold and use the premises consistently with the terms on which they were let. Because the ground turns on findings of fact, the Tribunal must record clear findings, on evidence, about the actual use to which the premises are being put, comparing the let purpose with the proven current user.
Pleading, proof and the Tribunal's approach
Both grounds are decided by the Rent Tribunal rather than an ordinary civil court, and the landlord must plead the precise clause relied on and lead evidence on its ingredients. For sub-letting, the landlord pleads and proves the third party's exclusive possession, whereupon the statutory presumption in the Explanation shifts the burden to the tenant; a petition that merely alleges “someone else is sitting in the shop” without establishing exclusive possession will fail, as Dipak Banerjee shows. For change of user, the landlord must establish the let purpose and the actual commercial user, partial or whole. The grounds frequently travel together in practice — a stranger found running a business from residential premises may attract both clause (e) and clause (g) — but each must be independently made out. The tenant's defences run in parallel: written permission, genuine licence or partnership with retained legal possession, and absence of exclusive possession for sub-letting; and absence of any real change of character, or merely incidental use, for change of user. For the complete statutory framework and how these grounds sit within the Act, see the Rajasthan Rent Control Act hub and the broader survey in eviction of tenant: grounds.
Exam takeaways
For the judiciary and CLAT-PG aspirant, the high-yield points are these. Sub-letting under clause (e) requires parting with exclusive possession for consideration; the Rajasthan Explanation presumes sub-letting once exclusive possession of a stranger is shown, codifying the onus rule of Bharat Sales Ltd. v. LIC, (1998) 3 SCC 1. Parting with possession means divesting the right to possess, not mere physical presence — Resham Singh v. Raghbir Singh, AIR 1999 SC 3087. A genuine partnership in which the tenant retains legal possession is not sub-letting — Helper Girdharbhai, AIR 1987 SC 1782 — but a sham one will be unmasked, as the comprehensive framework in Celina Coelho Pereira, (2010) 1 SCC 217, confirms. Written permission of the landlord is a complete defence to clause (e). Change of user under clause (g) is attracted by commercial use of residential premises, whole or partial, but requires a real change in dominant character, not a trifling deviation. Together the clauses keep the tenancy tied to its named occupant and its let purpose.
Frequently asked questions
What must a landlord prove to evict a tenant for sub-letting under the Rajasthan Act?
Under clause (e) of Section 9, sub-letting requires parting with exclusive possession of the premises to a third party, for consideration, without the landlord's written permission. Crucially, the Explanation to the clause presumes sub-letting once the landlord establishes that some person other than the tenant is in exclusive possession, codifying the onus rule of M/s Bharat Sales Ltd. v. LIC, (1998) 3 SCC 1.
Does the mere presence of a third party on the premises amount to sub-letting?
No. Per Resham Singh v. Raghbir Singh, AIR 1999 SC 3087, the tenant must have divested himself of both physical possession and the right to possession. A licensee, guest, employee or relative occupying under the tenant's control does not transfer legal possession, so there is no sub-letting unless the third party is in exclusive possession.
How is monetary consideration proved in a sub-letting case?
It is rarely proved directly. In Bharat Sales, (1998) 3 SCC 1, the Supreme Court held that where a third party is shown to be in exclusive possession of part of the premises, the court may infer that the transaction was for monetary consideration. Under the Rajasthan Act, the statutory Explanation reinforces this by presuming both parting and consideration once exclusive possession is established.
Does inducting a partner into the business amount to sub-letting?
Not if the partnership is genuine and the tenant retains legal possession. In Helper Girdharbhai v. Saiyed Mohmad, AIR 1987 SC 1782 (1987) 3 SCC 538, the Supreme Court held that allowing a firm in which the tenant is a partner to carry on business is not sub-letting. But a sham partnership floated to mask a sub-letting will be seen through and the veil lifted.
What is change of user under the Rajasthan Rent Control Act, 2001?
Clause (g) of Section 9 allows eviction where premises let for residential purposes have been put to commercial use, wholly or partially. A residential flat turned into a shop, office or godown attracts the clause. The change must be real and alter the dominant character of the premises; a trifling or incidental activity that leaves the residential character intact will not suffice.
Is the landlord's written permission a defence to a sub-letting petition?
Yes. Clause (e) applies only to a parting with possession done “without the written permission of the landlord,” so genuine written consent is a complete defence. Oral permission or mere knowledge is generally insufficient, though long acceptance of rent with full knowledge of a sub-tenancy may, on the facts, support a plea of waiver.