1. Eviction proceeding under West Bengal Premises Tenancy Act, 1997, regarding tenant's default in paying apportioned municipal taxes under the Kolkata Municipal Corporation Act, 1980. (Para 2 , 3 , 4 , 5 , 6 )
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2018 Supreme(SC) 798
SUPREME COURT OF INDIA
RANJAN GOGOI, R. BANUMATHI, NAVIN SINHA, JJ.
M/S POPAT & KOTECHA PROPERTY & ORS. – APPELLANT(S)
VERSUS
ASHIM KUMAR DEY – RESPONDENT(S)
CIVIL APPEAL NO(S). 8149 OF 2018 [ARISING OUT OF SLP(C) NO.13912 OF 2017]
Decided On : 09-08-2018
Important Points
IMPORTANT POINT
When a tenant agrees to pay municipal taxes then not paying proportionate enhanced tax, particularly in absence kof denial of his liability or challenging the calculation or its legality, makes him defaulter liable to be evicted.
When a tenant agrees to pay municipal taxes then not paying proportionate enhanced tax, particularly in absence kof denial of his liability or challenging the calculation or its legality, makes him defaulter liable to be evicted.
Subject
Landlord and Tenant - Eviction
Act Referred
Headnote
West Bengal Premises Tenancy Act, 1997 – Section 5(8) – Rent agreement requiring tenant, as occupier, to pay municipal taxes with proportionate enhancements in case of enhancement of taxes – Tenant defaulting – Not denying his liability to pay such enhanced tax – Not challenging the calculation or its legality – Held, High Court went wrong in dismissing eviction petition filed by landlord. (Para 10, 13)
(2003) 10 SCC 533 – Relied upon
Facts of the case:
The rent agreement governing the parties in the present case was executed in the year 1991. Under the said agreement the parties had agreed that the rent would include all municipal taxes payable and that as and when such taxes are enhanced rent should be proportionately raised. However, with the amendment of the Act with effect from 10th July, 2001 and after incorporation of sub-section (8) of Section 5 the obligation to pay the municipal tax/taxes was specifically cast on the tenant in his/her capacity as an occupier.
As the respondent-tenant had not remitted the amount due as his share of the municipal tax, the landlord instituted the proceedings for eviction on the ground of default of payment of rent on the part of the respondent-tenant.
The Trial Court dismissed the claim of the landlord.
The High Court dismissed the appeal filed by the landlord.
Finding of the Court:
High Court went wrong in dismissing eviction petition filed by landlord.
Result: Appeal allowed.
Legal Category Hierarchy
Table of Contents
2. Whether default in paying statutory municipal tax shares constitutes default of rent and if such enhancement requires a formal order from the Rent Controller. (Para 3 , 7 , 10 )
3. Statutory obligations under Section 5(8) of the 1997 Act supersede prior agreements; municipal taxes are treated as rent recoverable by the landlord. (Para 8 , 11 , 12 )
4. Default in payment of municipal tax shares cast upon the tenant by statute constitutes default of rent, rendering the tenant liable for eviction. (Para 11 , 13 )
5. Appeal allowed; orders of the High Court and Trial Court set aside; application for eviction of the tenant granted. (Para 14 )
6. Does default in paying municipal tax shares under the West Bengal Premises Tenancy Act constitute a default in rent?
Yes. Under Section 5(8) of the 1997 Act and Section 231 of the 1980 Act, municipal taxes apportioned to the tenant are treated as rent and are recoverable as such. (Para 11 , 13 )
7. Does a landlord need a formal order from the Rent Controller to recover enhanced municipal taxes from a tenant?
No. When the obligation to pay municipal taxes is a statutory requirement cast upon the tenant as an occupier, the landlord does not need a formal rent enhancement order. (Para 13 )
8. Who is primarily liable for municipal taxes and how is recovery handled?
The owner or lessor is primarily liable to the Municipal Corporation but is entitled to recover the proportionate share of the tax from the tenant or occupier. (Para 11 , 12 )
JUDGMENT
RANJAN GOGOI, J.
1. Leave granted.
2. This appeal by special leave by the landlord is against the order dated 7th December, 2016 passed by the Calcutta High Court in a proceeding under the West Bengal Premises Tenancy Act, 1997 (hereinafter referred as “the 1997 Act”) for eviction of the respondent-tenant on the ground that the tenant had defaulted in payment of his share of municipal tax as an occupier under the provisions of the Kolkata Municipal Corporation Act, 1980 (hereinafter referred to as “the 1980 Act”). The application filed by the landlord was dismissed by the learned Trial Court which view has been upheld in appeal by the High Court.
3. The matter lies in a very short compass and the question arising may be formulated as hereunder:
“Whether after the amendment of the West Bengal premises Tenancy Act by Amendment Act No. 14 of 2001 with effect from 10th July, 2001 [which had incorporated sub-section (8) to Section 5] whether a tenant who defaults in payment of his/her share of municipal tax as apportioned by the landlord would be in default of rent rendering him/her liable to eviction.”
4. The rent agreement governing the parties in the present case was executed in the year 1991. Under the said agreement the parties had agreed that the rent would include all municipal taxes payable and that as and when such taxes are enhanced rent should be proportionately raised. However, with the amendment of the Act with effect from 10th July, 2001 and after incorporation of sub-section (8) of Section 5 the obligation to pay the municipal tax/taxes was specifically cast on the tenant in his/her capacity as an occupier. Sub-Section (8) of Section 5 is in the following terms:
“5. Obligations of tenant.-
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(8) Every tenant shall pay his share of municipal tax as an occupier of the premises in accordance with the provisions of the Kolkata Municipal Corporation Act, 1980 (West Bengal Act LIX of 1980) or the West Bengal Municipal Act, 1993 (West Bengal Act XXII of 1993).
5. In the present case, the property tax payable in respect of the suit property was reassessed and enhanced. There were several tenants in occupation of the suit property. The landlord apportioned the tax between the tenants and issued a notice dated 7th February, 2003 upon the respondent-tenant to pay his share of the municipal taxes. The respondent-tenant by reply dated 29th March, 2003 to the said notice had sought for a reconsideration/review of the matter on a “co-operative spirit for the sake of harmonious relation between tenant and landlord.”
As the respondent-tenant had not remitted the amount due as his share of the municipal tax, the landlord instituted the proceedings for eviction on the ground of default of payment of rent on the part of the respondent-tenant.
6. The learned Trial Court dismissed the claim of the landlord on the ground that no documentary evidence with regard to the enhancement of property tax was forthcoming and as the respondent-tenant had been depositing the monthly rent payable with the Rent Controller, the tenant cannot be deemed to be the defaulter.
7. In appeal, the High Court upheld the order of the learned Trial Court though on a different reasoning. The High Court held that even if the municipal taxes are to be held to be part of the rent payable, there is no automatic enhancement of the rent by an unilateral notice on the part of the landlord under Section 20 of the 1997 Act and that such enhancement has to be ordered by the Rent Controller. As the aforesaid requirement was not met, the High Court dismissed the appeal filed by the landlord.
8. In the present case, under the tenancy agreement municipal taxes were included in the monthly rent payable and any enhancement thereof was to result in enhancement of the monthly rent also. With the amendment made to the Act with effect from 10th July, 2001 and upon incorporation of sub-section (8) of Section 5, the obligation to pay municipal taxes as an occupie
