Eviction petition of landlord to evict tenant on the ground of default in payment of his share of municipal tax as an occupier under the provisions of the Kolkata Municipal Corporation Act, 1980.
August 11, 2018
A Supreme Court Bench of Judges Justice Ranjan Gogoi, Justice R. Banumathi and Justice Navin Sinha in Popat & Kotecha Property & Ors v. Ashim Kumar Dey, Civil Appeal No. 8149 of 2018 allowed the appeal filed by the land lord for eviction of tenant on the ground of ground of default in payment of his share of municipal tax as an occupier under the provisions of the Kolkata Municipal Corporation Act, 1980.
Question of Law formulated
"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."
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.
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)."
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.
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.
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.
In the said 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 occupier of the
premises fell upon the tenant. The relevant clauses in the rent agreement
therefore stood superseded by the statutory obligation cast on the tenant by
the amendment to the Act.
Following the enhancement of municipal taxes by the Municipal Corporation in
respect of the suit property an apportionment of the share of each tenant
was made by the landlord and a notice to pay was served on the
respondent-tenant. As already noticed, in his reply, the respondent-tenant
did not dispute his liability to pay his share of the municipal tax and had
sought for a reconsideration/review.
The court while disposing of the appeal said that :
"13. In the present case, default on the part of the respondent-tenant is
clear and evident. The obligation to pay municipal taxes on the tenant being
over and above the obligation to pay the rent by virtue of the provisions of
Section 5(8) of the 1997 Act, the High Court could not have imposed on the
landlord the requirement of obtaining a formal order of enhancement of rent
from the Rent Controller.
14. For the aforesaid reasons, we allow this appeal and set aside the order
of the High Court affirming the order of the learned Trial Court. The
application filed by the landlord for eviction of the respondent-tenant is
allowed."
Read the Judgment of Supreme Court of India in Popat & Kotecha Property & Ors v. Ashim Kumar Dey, Civil Appeal No. 8149 of 2018 dated 9.8.2018