We often get asked questions like: Can I sue to recover possession of a shop that has been lying unused for five years under the Delhi Rent Control Act? What can I do under the Delhi Rent Control Act to recover possession of a commercial office space that has not been used by the tenant for the past [enter period] years or months? Do the provisions of Section 14(1)(d) apply to commercial properties?

The short answer is: No, Section 14(1)(d) does not apply to commercial properties. Read on for more.

Section 14(1)(d) in the Delhi Rent Control Act, 1958 reads as follows:

14. Protection of tenant against eviction. –

(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by and court or Controller in favor of the landlord against a tenat:

Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:-

(d) That the premises were let for use as a residence and neither the tenant nor any member of his family has been residing therein for a period of six months immediately before the date of the filing of the application for the recovery of possession thereof;

To be sure, the Delhi Rent Control Act, 1958 does contain a provision for the ejectment of tenant on the ground of non-user of property (the failure to use the property), but it only speaks of  and covers residential properties and not commercial properties. In other words, this particular ground of eviction is not available to landlords of non-residential or commercial premises like shops, etc.; and tenants can continue to not use such commercial premises for extended periods if they so want without worrying about the possibility of eviction for such conduct.

Therefore, to answer the question at hand, the provisions of Section 14(1)(d) do not apply to non-residential or commercial premises. This means a tenant cannot be legally evicted from such a commercial premises on the ground of non-user.

Is Section 14(1)(d) Constitutionally Valid?

This question has yet to be examined by a constitutional court. If you are a landlord, please rest assured that there is a fair chance that Section 14(1)(d) may not come out unscathed if so examined by a constitutional court. This is because the Supreme Court has already struck down the part of Section 14(1)(e) –  eviction on ground of bona fide need of landlord – that discriminated between residential and non-residential premises (please see Satyawati Sharma [Dead] by Lrs. [2008] 5 SCC 287).

The struck-down part of Section 14(1)(e) was found to be discriminatory in a manner violative of Article 14 of the Constitution, with the court finding no rational justification for the legislature extending the benefit of Section 14(1)(e) to only landlords of residential promises.

The same, in this author’s opinion, is the case with Section 14(1)(d). The distinction between residential and non-residential tenanted premises cannot be justified logically, and in no way furthers the object of the Delhi Rent Control Act.

We must not lose sight of the fact that there is an underlying presumption that is the raison d’etre of rent-control statutes: that tenants everywhere have a bona fide need for properties tenanted by them, whether commercial or residential.  The statutory protection offered to them is in this context, and not as a means of harassing landlords. This effective exclusion of landlords of non-residential premises is not only logically indefensible, but the classification or distinction it creates has no nexus with the abovesaid object of offering just and fair statutory protection to tenants and no more.

Section 14(1)(d), in excluding non-residential premises from its operational ambit, loses sight of this crucial fact, and runs afoul of Article 14.