A tenant holds the premises for a defined purpose, on defined terms, in his own possession. The moment he installs a stranger in exclusive occupation, or converts a let-out residence into a shop, he breaks the bargain on which the tenancy rests. The UP Regulation of Urban Premises Tenancy Act, 2021 codifies both prohibitions: Section 7 restricts sub-letting and assignment, while Section 21(2) makes unauthorised parting with possession and misuse independent grounds of eviction. This note maps the statutory text onto the settled sub-letting jurisprudence the courts continue to apply.
The statutory scheme: Section 7 and Section 21(2)
The 2021 Act treats sub-letting and change of user as two faces of the same idea — that a tenant may use and occupy the premises only as the written tenancy agreement permits. Section 7 governs the who: it restricts the tenant from inducting third parties or transferring his interest. Section 21(2) governs the consequence: unauthorised parting with possession (clause (c)) and continued misuse, including change of user (clause (d)), are grounds on which the Rent Authority may order eviction. The two provisions are read together — a breach of Section 7 ordinarily supplies the factual foundation for a Section 21(2)(c) eviction. Because the Act mandates a written agreement under Section 4, the permitted user and the identity of the tenant are documented from the outset, which sharpens both enquiries. This is a marked shift from the predecessor regime under the UP Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, where sub-letting was an absolute disability and the permitted user often had to be reconstructed from conduct. By front-loading consent and documentation, the 2021 Act converts what were once evidentiary battles over oral permission into a simple question: is there a supplementary agreement, and does the actual use match the recorded purpose? The framework is also forward-looking — clauses (c) and (d) apply to acts done after the commencement of this Act, so the scheme regulates fresh conduct rather than reopening arrangements that pre-date it.
Section 7: restriction on sub-letting, transfer and assignment
Section 7(1) provides that no tenant shall, except by entering into a supplementary agreement to the existing tenancy agreement, (a) sub-let the whole or part of the premises held by him as a tenant, or (b) transfer or assign his rights in the tenancy agreement or any part thereof. The drafting is deliberate: the Act does not impose an absolute bar on sub-letting (as the older rent statutes effectively did). It instead channels sub-letting through a formal, consensual route. Sub-letting is lawful only if the landlord joins in a supplementary agreement that records it. Anything outside that route — a stranger inducted quietly, an interest assigned without the landlord's signature — is an unlawful sub-letting or transfer that exposes the tenant to eviction. The clause covers three distinct acts that are often conflated. Sub-letting is the creation of a lesser tenancy under the tenant, who retains a reversion. Transfer is the disposal of the tenant's interest to another. Assignment is the passing of the whole of the tenant's leasehold interest to an assignee who steps into the tenant's shoes. All three are forbidden save through a supplementary agreement, so the tenant cannot achieve indirectly — by assigning rather than sub-letting — what Section 7 forbids him to do directly. The provision binds the tenant alone; a landlord remains free to deal with his reversion, subject to the statutory protections that travel with the tenancy under the rule on succession.
The supplementary-agreement route and notification
Where the premises are lawfully sub-let through a supplementary agreement, Section 7(2) requires the landlord and tenant jointly to inform the Rent Authority of the sub-tenancy within two months from the date of execution of that agreement. This mirrors the registration philosophy of Section 4, under which the principal tenancy must itself be intimated to the Authority. The notification turns a private arrangement into a recorded one, so that the sub-tenant's possession is referable to the landlord's consent rather than to a clandestine transaction. Practitioners should note the sequencing: consent first (supplementary agreement), induction second, intimation within two months. A sub-tenant let in before the supplementary agreement is executed cannot be regularised retrospectively merely by a late filing — the parting with possession has already occurred without written consent, which is the gravamen of Section 21(2)(c).
What constitutes sub-letting: parting with exclusive possession
The Act does not define sub-letting exhaustively, so the courts' settled test continues to apply. In M/s Bharat Sales Ltd. v. Life Insurance Corporation of India, AIR 1998 SC 1240, the Supreme Court held that sub-letting occurs when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. Two ingredients are essential: parting with possession, and that the third party holds with the right to exclude others, including the tenant. Mere permissive user, a licensee coming and going, or the tenant's family or servants occupying alongside him do not amount to sub-letting, because the tenant retains legal possession and control. The dividing line is exclusivity of possession, not the label the parties attach to the arrangement. The distinction tracks the lease-licence boundary: a lessee or sub-lessee gets a transfer of an interest in the premises with exclusive possession, whereas a licensee gets only a permission to do something that would otherwise be a trespass, the grantor retaining control. Where the tenant continues to occupy, supervise, or share the premises, no exclusive possession passes and there is no sub-letting; where the third party can shut the tenant out, the arrangement is a sub-tenancy whatever it is called. This is why courts look past the nomenclature in the deed to the realities of occupation — who pays the electricity bill, whose name is on the trade licence, who is physically in occupation day to day, and whether the tenant has any continuing presence at all.
Parting with possession under Section 21(2)(c)
Section 21(2)(c) makes it a ground of eviction that the tenant has, after the commencement of the Act, parted with possession of the whole or any part of the premises without obtaining the written consent of the landlord. The emphasis on "written" consent dovetails with the Section 7 supplementary-agreement mechanism: oral permission, or acquiescence inferred from silence, will not save the tenant. The clause is wider than sub-letting in the strict sense — it captures any unauthorised parting with possession, whether or not rent or consideration passed. The conceptual ingredients remain those distilled in Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar, (2010) 1 SCC 217: parting with possession of the tenancy, or part of it, in favour of a third party with an exclusive right of possession, done without the landlord's consent and in lieu of compensation or rent. Once those elements are established, the ground is made out.
Burden of proof and the inference of consideration
The onus of proving sub-letting or unauthorised parting with possession lies on the landlord, but the courts have realistically recognised that direct evidence is rarely available. Bharat Sales held that the landlord need not prove the actual payment of monetary consideration by the sub-tenant; the inference of sub-letting can be drawn from proof of delivery of exclusive possession. Because sub-letting in the guise of a licence or a partnership is, by its nature, a clandestine arrangement between tenant and occupant, once exclusive possession of a third party is shown, the inference of consideration arises and the evidentiary burden shifts to the tenant to rebut it. Celina Coelho Pereira restated this: if the landlord prima facie shows that a stranger is in exclusive possession, it is then for the tenant to explain the nature of that possession. Landlords accordingly build their case on circumstances — sign-boards, electricity connections, business registrations, the tenant's own absence — from which exclusive possession is inferred.
Partnership and the licensee defence: lifting the veil
Tenants frequently resist eviction by characterising the occupant as a partner or a licensee rather than a sub-tenant. The law tolerates genuine arrangements but pierces shams. In Helper Girdharbhai v. Saiyed Mohmad Mirasaheb Kadri, AIR 1987 SC 1782, the Supreme Court held that where a tenant becomes a partner in a firm and lets the firm carry on business in the premises while he himself retains legal possession, there is no sub-letting — provided the partnership is genuine, judged by the ordinary tests of a shared business carried on by or on behalf of all partners. The converse is equally settled: in Celina Coelho Pereira the Court affirmed that where the tenant has divested himself of possession and the partnership deed is merely a cloak to conceal an impermissible transfer, the court is not estopped from lifting the veil to ascertain the true nature of the transaction. The enquiry is always whether the tenant has retained legal possession or surrendered exclusive possession to the occupant. The genuineness test borrows the ingredients of partnership law: an agreement between the persons concerned, an agreement to share the profits of a business, and the business being carried on by all or any of them acting for all. A partnership that exists only on paper, with the tenant contributing the premises and then disappearing while the supposed partner trades alone and keeps the profits, will not survive scrutiny. Conversely, a tenant who actively participates in the firm's business and retains his foothold in the premises does not lose his tenancy merely because the firm, rather than he personally, occupies and trades. The same reasoning disposes of the licensee defence: a true licensee leaves the tenant in possession, while a sham licence that confers exclusive possession is sub-letting in disguise.
Whether unlawful sub-letting must subsist at the date of suit
A recurring defence is that the sub-tenant has since left, so the breach no longer subsists. The settled answer is that the tenant's liability to eviction crystallises once unlawful sub-letting is proved to have occurred. In Gajanan Dattatraya v. Sherbanu Hosang Patel, (1975) 2 SCC 668, the Supreme Court held that once the fact of unlawful sub-letting is established, the protection of the tenant ceases, and it is no answer that the sub-letting did not continue up to the date of the suit or decree. Under the 2021 Act the same logic operates through the language of Section 21(2)(c), which speaks of a tenant who "has" parted with possession after commencement — a completed act of unauthorised parting founds the ground, and a subsequent surrender by the sub-tenant does not cure the breach. This protects the integrity of the Section 7 regime against tactical reversals once litigation looms.
Change of user as misuse under Section 21(2)(d)
Section 21(2)(d) makes it a ground of eviction that the tenant has continued to misuse the premises even after receiving notice from the landlord to desist from such misuse. The Explanation to the clause defines "misuse" to include the encroachment of additional space by the tenant, the use of the premises for a purpose other than the purpose permitted in the tenancy agreement, and use causing public nuisance or damage or detriment to the landlord's interests, or for immoral or illegal purposes. Change of user — typically converting premises let for residence into commercial use, or vice versa — squarely falls within the second limb. Because the written agreement records the permitted purpose, the comparison is documentary: the actual use is measured against the agreed user, and a material departure is misuse. Not every deviation qualifies — the Explanation is concerned with use for a purpose other than the permitted one, which connotes a substantial change in the character of the user rather than a trivial or incidental variation. A tenant of a residence who runs a modest home office may not have changed the user, while one who converts the dwelling into a warehouse or a manufacturing unit plainly has. The other limbs of the Explanation — encroachment of additional space, use causing public nuisance, damage or detriment to the landlord's interests, or use for immoral or illegal purposes — show that the clause targets conduct that alters the premises' character or harms the landlord or the public, not mere technical breaches. The permitted-purpose limb is the one most directly engaged by change of user, and its anchor is always the written agreement.
The mandatory notice to desist and its consequences
Section 21(2)(d) differs structurally from the parting-with-possession ground in one important respect: it requires that the tenant has continued to misuse the premises even after receipt of notice from the landlord to desist. The notice element is built into the ground itself. A landlord cannot move directly to eviction on the first instance of change of user; he must first call upon the tenant to stop, and only persistence after that notice founds the application. This gives the tenant an opportunity to restore the agreed user and preserve the tenancy — a proportionality safeguard absent from clause (c). The landlord's eviction application must therefore plead and prove (i) the agreed purpose, (ii) the actual departing use, (iii) service of a notice to desist, and (iv) the tenant's continued misuse thereafter. Failure on the notice limb is, by itself, fatal to a clause (d) claim.
Interaction with the landlord-tenant rights regime
Sub-letting and change of user are best understood against the broader matrix of rights and duties of landlord and tenant under the Act. The tenant's obligation to use the premises only for the permitted purpose, and to keep possession in himself absent a supplementary agreement, are correlative duties owed to the landlord. The landlord's remedy lies before the Rent Authority under Section 21(2), and the Authority's order for eviction and recovery of possession follows proof of the ground. The 2021 framework deliberately routes these disputes through the Authority rather than the civil courts, aiming at speed; but the substantive tests — exclusive possession, genuine versus sham arrangements, agreed versus actual user — remain those the higher courts have refined over decades of rent-control litigation.
Exam takeaways
For judiciary and CLAT-PG candidates, four propositions should be memorised. First, Section 7 permits sub-letting only through a supplementary agreement, with joint intimation to the Rent Authority within two months. Second, sub-letting under Bharat Sales requires parting with exclusive possession; the inference of consideration follows from proof of exclusive possession, shifting the burden to the tenant. Third, a genuine partnership does not amount to sub-letting (Helper Girdharbhai), but courts will lift the veil where it is a cloak (Celina Coelho Pereira), and a completed unlawful sub-letting founds eviction even if it has since ceased (Gajanan Dattatraya). Fourth, change of user is actionable under Section 21(2)(d) only as "misuse" that continues after a notice to desist — the notice is a constituent of the ground, not a mere formality.
Frequently asked questions
Is sub-letting completely prohibited under the UP Regulation of Urban Premises Tenancy Act, 2021?
No. Section 7(1) does not impose an absolute bar. A tenant may sub-let, or transfer and assign tenancy rights, only by entering into a supplementary agreement to the existing tenancy agreement. The landlord and tenant must then jointly inform the Rent Authority about the sub-tenancy within two months. Sub-letting outside this route is unlawful and exposes the tenant to eviction.
What is the essential test for sub-letting?
Parting with exclusive possession. In M/s Bharat Sales Ltd. v. Life Insurance Corporation of India, AIR 1998 SC 1240, the Supreme Court held that sub-letting occurs when the tenant gives up possession, wholly or in part, and puts a third party in exclusive possession with the right to exclude others. Mere permissive user by a licensee, family, or servants is not sub-letting because the tenant retains legal possession.
Does the landlord have to prove that the sub-tenant paid rent or consideration?
Not directly. Bharat Sales held that the landlord need not prove actual payment of monetary consideration. Once exclusive possession of a third party is shown, the inference of consideration arises because such arrangements are inherently clandestine, and the evidentiary burden shifts to the tenant to explain the nature of the occupant's possession, as reaffirmed in Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar, (2010) 1 SCC 217.
Can a tenant avoid eviction by claiming the occupant is a partner?
Only if the partnership is genuine. In Helper Girdharbhai v. Saiyed Mohmad Mirasaheb Kadri, AIR 1987 SC 1782, the Court held that a tenant who remains in legal possession while a genuine firm trades in the premises is not sub-letting. But where the partnership deed is a mere cloak for an impermissible transfer, courts will lift the veil to find the true nature of the transaction (Celina Coelho Pereira).
If the sub-tenant has already left, is the tenant still liable to eviction?
Yes. In Gajanan Dattatraya v. Sherbanu Hosang Patel, (1975) 2 SCC 668, the Supreme Court held that once unlawful sub-letting is proved, the tenant's protection ceases; it is no defence that the sub-letting did not continue up to the date of suit or decree. Section 21(2)(c) similarly speaks of a tenant who "has" parted with possession, so a completed unauthorised parting founds the ground.
How is change of user treated, and is notice required?
Change of user is treated as "misuse" under Section 21(2)(d). The Explanation includes use of the premises for a purpose other than that permitted in the tenancy agreement. Unlike parting with possession, this ground requires that the tenant has continued the misuse even after receiving a notice from the landlord to desist. The notice to desist is a constituent element of the ground, giving the tenant a chance to restore the agreed user.