Sub-letting, Cessation of Occupation, Change of User

Three of the most litigated eviction grounds under the Telangana Buildings (Lease, Rent and Eviction) Control Act, 1960 sit together in Section 10(2): unauthorised sub-letting or transfer of the lease, change of user of the building, and cessation of occupation. Each protects a distinct landlord interest, each carries its own ingredients and burden of proof, and each has generated a rich body of Supreme Court doctrine on exclusive possession, intention and consideration. This note works through the bare statutory text, the leading authorities, and the practical evidentiary battles these grounds throw up before the Rent Controller.

The statutory home of the three grounds

All three grounds live in the second limb of Section 10. Under Section 10(1) a tenant cannot be evicted except in accordance with the Act, and Section 10(2) lists the fault grounds on which the landlord may apply to the Controller. Sub-letting and transfer of the lease fall under Section 10(2)(ii)(a): a tenant who has "transferred his right under the lease or sub-let the entire building or any portion thereof if the lease does not confer on him any right to do so." Change of user falls under Section 10(2)(ii)(b): a tenant who has "used the building for a purpose other than that for which it was leased." Cessation of occupation falls under Section 10(2)(v): a tenant who has "ceased to occupy the building for a continuous period of four months without reasonable cause." Each ground is independent; the landlord need establish only one. For the foundational vocabulary of tenant, building and landlord that these clauses deploy, see the definitions note, and for the broader catalogue of grounds, the subject hub.

Sub-letting: what the landlord must prove

The clause bites only where the tenant has parted with the premises without a right to do so under the lease and without the landlord's consent. Two cumulative ingredients must be made out. First, the tenant must have parted with possession of the whole or a part of the building; mere permissive user, where the tenant retains legal control, is not enough. Second, the parting must be for consideration. The Supreme Court fixed these twin requirements in Smt. Rajbir Kaur v. S. Chokesiri & Co., (1989) 1 SCC 19, holding that on the question of sub-letting the two ingredients to be established are parting with possession and monetary consideration therefor. The same two-ingredient test was reaffirmed in Shama Prashant Raje v. Ganpatrao, (2000) 7 SCC 522. A tenant who merely allows a relative, employee or licensee to use the premises while himself retaining the legal right to possession does not sub-let. The crucial dividing line, therefore, is the transfer of exclusive possession.

Exclusive possession and the lease-licence line

Because sub-letting turns on parting with possession, the lease-versus-licence distinction is decisive. The classic statement remains Associated Hotels of India Ltd. v. R.N. Kapoor, AIR 1959 SC 1262, where Subba Rao J. laid down that the substance of a document must be preferred to its form; that the real test is the intention of the parties; that a document creating an interest in the property is a lease while one merely permitting use, with legal possession retained by the owner, is a licence; and crucially that "if under the document a party gets exclusive possession of the property, prima facie, he is considered to be a tenant; but circumstances may be established which negative the intention to create a lease." Exclusive possession is thus prima facie evidence of tenancy, though rebuttable. The companion decision in Associated Hotels of India Ltd. v. S.B. Sardar Ranjit Singh (1968) illustrates the converse: a hotelier who retains control over an apartment and merely licenses its occupation has not created a sub-tenancy. The Controller must look past the label the parties attach and ask who, in substance, controls the premises.

Burden of proof and the shifting onus

Sub-letting is, by its nature, a clandestine arrangement, so the law is realistic about proof. In Rajbir Kaur the Court observed that transactions of sub-letting in the guise of licences are in their very nature clandestine arrangements between tenant and sub-tenant and that direct evidence can rarely be furnished; consequently, if exclusive possession of a third party is established, the court may draw an inference that the transaction was for monetary consideration even without affirmative proof of payment. The burden, however, begins with the landlord. The settled position, articulated in M/s Bharat Sales Ltd. v. Smt. Lakshmi Devi, AIR 2002 SC 2554, (2002) 5 SCC 629, is that the landlord must first prove that a third party is in exclusive possession of the premises; once that is shown and it appears the original tenant is no longer in possession, the onus shifts to the tenant to explain how that third party came to be there and to establish that he himself continues to hold legal possession. Failure to discharge that shifted burden justifies a finding of unlawful sub-letting.

Transfer of the lease as a distinct head

Section 10(2)(ii)(a) catches not only sub-letting but also a tenant who has "transferred his right under the lease" without authority. This is a separate species of the same ground: instead of creating a sub-tenancy beneath himself, the tenant assigns or makes over his entire leasehold interest to another. An assignment of the tenancy without the lease conferring such a right, and without the landlord's written consent, falls squarely within the clause. The distinction matters in pleading and proof: in a transfer, the original tenant exits the picture altogether and the transferee claims the whole interest, whereas in sub-letting the tenant remains tenant of the landlord while himself becoming the landlord of the sub-tenant. Where the lease expressly permits assignment or sub-letting, the ground is unavailable; the landlord must establish the absence of such a contractual right. This interlocks with the statutory definition of tenant, which determines who may claim protection once a transfer is alleged.

The role of the landlord's consent

The clause is qualified by the words "if the lease does not confer on him any right to do so." Sub-letting or transfer is therefore lawful in two situations: where the lease itself confers the right, or where the landlord consents. Consent may be express or, in appropriate facts, inferred from conduct such as long acquiescence with knowledge, acceptance of rent from the sub-tenant, or other waiver. But a landlord who is unaware of the sub-letting cannot be said to have consented merely because he continued to receive rent from his own tenant. The evidentiary enquiry is whether the landlord knew of the third party's exclusive occupation and nonetheless treated the arrangement as permissible. Because consent is a complete answer to the ground, the tenant who pleads it carries the burden of proving it. Where the lease is silent and no consent is shown, an established parting with exclusive possession for consideration completes the ground.

Change of user: using the building for another purpose

Section 10(2)(ii)(b) permits eviction where the tenant has "used the building for a purpose other than that for which it was leased." The enquiry is twofold: first, identify the purpose for which the building was let; second, ask whether the tenant has put it to a materially different use. The purpose of the letting is gathered from the lease, the nature of the premises, the rent structure, and the surrounding circumstances. A building let for residence that is converted into a shop, godown or commercial office, or a building let for a specific trade that is turned to a wholly different business, can attract the ground. The change must be a real and substantial departure from the agreed purpose, not a trivial or incidental variation; a professional who keeps an office in part of a residence, or minor ancillary use, may not amount to a change of user. The classification of the building and the agreed purpose connect to the scope and application of the Act in notified areas.

Proving change of user

The landlord must establish both the original letting purpose and the deviation. Where the lease is silent on purpose, the dominant or contemplated use at the time of letting governs, to be proved by evidence of the building's character and the parties' dealings. The deviation must persist or be of a kind that defeats the object of the letting; a momentary or abandoned change may not suffice. Mixed-use questions are common: a building let for residence-cum-business cannot found the ground merely because business is carried on, since that was within the contemplated purpose. The Controller therefore weighs whether the present use is consistent with the bundle of uses originally intended. Unlike sub-letting, change of user does not depend on a third party's possession; the tenant himself may commit the breach by his own changed activity on the premises. The ground is frequently pleaded alongside sub-letting where a residential tenant both parts with possession and the premises are then run commercially.

Cessation of occupation for four months

Section 10(2)(v) allows eviction where the tenant "has ceased to occupy the building for a continuous period of four months without reasonable cause," or has secured an alternative building. Two elements must concur: a continuous non-occupation of at least four months, and the absence of reasonable cause. Occupation does not require constant physical presence; a tenant who keeps his belongings, retains control, intends to return and is absent for a genuine reason, such as work, illness, travel or family obligation, has not "ceased to occupy." The statutory phrase "without reasonable cause" builds an intention element into the ground: animus revertendi, the intention to return, ordinarily defeats the allegation. The rationale of the ground is to prevent a tenant from keeping a controlled building locked up and idle while genuine occupiers go without, frustrating the social object of rent legislation explained in the introduction.

Cessation: animus and burden

The landlord must prove the factum of continuous non-occupation for the statutory four months. Once a prima facie case of locked or unused premises across the period is shown, the tenant is well placed to explain the cause of absence and to demonstrate his intention to return, since those facts lie peculiarly within his knowledge. Keeping furniture and effects in the premises, paying rent, retaining the key and giving a credible explanation for absence are the usual indicators of continued occupation and reasonable cause. Conversely, removing all effects, taking up settled residence elsewhere, or securing an alternative building points to cessation. The four-month period must be continuous; intermittent returns that genuinely interrupt the period defeat the ground. Because the ground is fault-based, the standard is strict and the Controller construes "reasonable cause" pragmatically in the tenant's favour where a bona fide intention to return is shown.

Procedure, overlap and consequences

An application on any of these grounds is made to the Rent Controller under Section 10(2), must state the ground relied on, and is decided after enquiry with a right of appeal and revision. The grounds frequently overlap and may be pleaded in the alternative: a single fact pattern, such as a residential tenant who hands over the premises to a stranger who then opens a shop, can simultaneously found sub-letting under (ii)(a) and change of user under (ii)(b). Because these are fault grounds, the landlord bears the initial burden, and the order, if made, results in eviction of the tenant and any sub-tenant or transferee bound by it. The remedies sit within the wider eviction architecture detailed in the grounds-of-eviction note and operate against the backdrop of the Act's rent-fixation provisions on fair rent.

Exam takeaways

For the judiciary and CLAT-PG aspirant, the three grounds reduce to a small set of testable propositions. Sub-letting under Section 10(2)(ii)(a) requires parting with possession plus consideration (Rajbir Kaur; Shama Prashant Raje), with the onus shifting to the tenant once exclusive third-party possession is shown (Bharat Sales), and exclusive possession is prima facie evidence of a lease, not a licence (R.N. Kapoor). Transfer of the lease is a distinct head within the same clause. Change of user under (ii)(b) demands a substantial departure from the purpose of letting, proved from the lease and surrounding circumstances. Cessation of occupation under Section 10(2)(v) needs continuous four-month non-occupation without reasonable cause, with animus revertendi as the tenant's principal defence. In every case, a contractual right or the landlord's consent is a complete answer to the sub-letting and transfer ground.