M/S POPAT & KOTECHA PROPERTY & ORS.versusASHIM KUMAR DEY

518                      [2018]REPORTS
               SUPREME COURT    9 S.C.R. 518                 [2018] 9 S.C.R.


A              M/S POPAT & KOTECHA PROPERTY & ORS.
                                         v.
                             ASHIM KUMAR DEY
                         (Civil Appeal No. 8149 of 2018)
B                               AUGUST 09, 2018
                    [RANJAN GOGOI, R. BANUMATHI
                        AND NAVIN SINHA, JJ.]
            West Bengal Premises Tenancy Act, 1997 – sub-s.8 of s.5
      (Incorporated vide Amendment Act No.14 of 2001) – Landlord filed
C
      application under the Act of 1997 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 – Application
      dismissed by the trial Court – Dismissal upheld by the High Court –
D     On appeal, held: With amendment to the Act of 1997 with
      incorporation of sub-s.8 of s.5, the obligation to pay municipal
      taxes as an occupier of the premises fell upon the tenant – In
      instant case, respondent-tenant nowhere denied in any specific terms
      that the share of municipal taxes demanded was disproportionate
      or excessive or otherwise unauthorised in law – Furthermore,
E
      default on the part of the respondent-tenant was 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
F     order of enhancement of rent from the Rent Controller – Thus,
      application filed for eviction is allowed – Kolkata Municipal
      Corporation Act, 1980.
             Kolkata Municipal Corporation Act, 1980 – ss.230 and 231
      – Municipal tax assessment when premises is occupied by more than
G     one tenant – Held: Assessment of a part of premises in occupation
      of different tenants for municipal tax is not contemplated under the
      1980 Act – In fact, from the provisions of s.230 of the Act, it is clear
      that the person to be assessed to tax is the person “primarily liable
      to pay” i.e. the owner who is further vested with the right to recover
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                                       518
        M/S POPAT & KOTECHA PROPERTY & ORS. v.                         519
                  ASHIM KUMAR DEY

the portion of the tax paid by him on behalf of the tenant – Thus,     A
the municipal taxes would be a part of the “rent” payable by the
tenant to the landlord – Besides, the Act provides that in event of
any default on the part of the owner to pay the tax the rent payable
by the tenant(s) is liable to be attached.

      Allowing the appeal, the Court                                   B

      HELD: 1. 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 West Bengal Premises Tenancy Act, 1997 and upon                 C
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. [Para 8] [522-F-G]                        D
      2. In the present case 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. In his reply, the respondent-tenant did not         E
dispute his liability to pay his share of the municipal tax and had
sought for a reconsideration/review. [Para 9] [522-H; 523-A-B]

      3. The argument advanced that the landlord cannot
apportion the municipal taxes among different tenants if the
premises is to be occupied by more than one tenant and it is the       F
Municipal Corporation who is the authority to separately assess
the tax payable by each tenant does not find any support from the
provisions of the Kolkata Municipal Corporation Act, 1980. While
the provisions of the 1980 Act make it very clear that an occupier
as distinguished from the owner i.e. ‘person primarily liable’ is      G
entitled to pre-assessment notice and to participate in the
assessment proceedings and also to question the same by way of
an appeal, etc. assessment of a part of the premises in occupation
of a tenant or different parts of such premises in occupation of

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520            SUPREME COURT REPORTS                        [2018] 9 S.C.R.


A     different tenants is not contemplated under the 1980 Act. Rather,
      from the provisions of Section 230 of the 1980 Act, it is clear that
      the person to be assessed to tax is the person primarily liable to
      pay i.e. the owner who is vested with the right to recover the
      portion of the tax paid by him on behalf of the tenant, if required,
      proportionately to the extent that the value of the area occupied
B
      bears to the value of the total area of the property. Under the
      1980 Act, in the event of any default on the part of the owner to
      pay the tax the rent payable by the tenant(s) is liable to be attached.
      [Paras 10 and 12] 523-C-D; 524-H; 525-A-C]

C           4. 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
D     from the Rent Controller. [Para 13] [525-C-D]

            Calcutta Gujarati Education Society and Another
            v. Calcutta Municipal Corpn. and Others
            (2003) 10 SCC 533 : [2003] 2 Suppl. SCR 915
            – referred to.
E
                               Case Law Reference

            [2003] 2 Suppl. SCR 915          referred to       Para 11

            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8149
F     of 2018.

            From the Judgment and Order dated 07.12.2016 of the High Court
      at Calcutta in C.O. No.3942 of 2015.

            Rana Mukherjee, Sr. Adv., Siddharth Gautam, Shekhar Kumar,
G     Ms. Daisy Hannah, Ms. Kasturika Kaumudi, Ms. Ekta Pradhan,
      Ms. Sreoshi Chatterjee, Advs. for the Appellants.

            Rauf Rahim, Adv. for the Respondent.


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        M/S POPAT & KOTECHA PROPERTY & ORS. v.                               521
                  ASHIM KUMAR DEY

      The Judgment of the Court was delivered by                             A
      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-     B
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.          C
     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     D
      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          E
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       F
tenant in his/her capacity as an occupier. Sub-Section (8) of Section 5 is
in the following terms:
      “5. Obligations of tenant.-
                 ***                ***                    ***
                 ***                ***                    ***               G

      (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)

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522             SUPREME COURT REPORTS                            [2018] 9 S.C.R.


A            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
B     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
C     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
D     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
E     the municipal taxes are to be held to be part of the rent payable, there is
      no automatic enhancement of the rent byan 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
F     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
G     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.
            9. In the present case following the enhancement of municipal
      taxes by the Municipal Corporation in respect of the suit property an
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         M/S POPAT & KOTECHA PROPERTY & ORS. v.                                 523
          ASHIM KUMAR DEY [RANJAN GOGOI, J.]

apportionment of the share of each tenant was made by the landlord and          A
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.
In the written statement apart from an evasive denial in the following
terms there was no other denial or dispute raised:
                                                                                B
      “7…………The defendant further denies the legitimacy and/or
      authenticity of the calculation with regard to the enhancement of
      the rent…..”
       10. The respondent-tenant nowhere denied in any specific terms
that the share of municipal taxes demanded was disproportionate or              C
excessive or otherwise unauthorized in law. The argument advanced at
the bar that the landlord cannot apportion the municipal taxes among
different tenants if the premises is to be occupied by more than one
tenant and it is the Municipal Corporation who is the authority to separately
assess the tax payable by each tenant does not find any support from
the provisions of the 1980 Act.                                                 D

      11. This aspect of the matter came up for consideration before
this Court in Calcutta Gujarati Education Society and another vs.
Calcutta Municipal Corpn. and others1 and the views expressed by
this Court is found to be in paragraph 45 of the said report which is
extracted below:                                                                E

      “45. We find that the machinery provisions for assessment and
      recovery of tax basically involve the owner or the lessor who is
      “primarily liable” for the tax on property although in the course of
      assessment and recovery of portion of tax from the tenants, sub-
      tenants or occupants, their involvement is also directed. It is with      F
      the purpose to make the procedure of recovery of tax simpler
      that the owner or the lessor is proceeded against as the “person
      primarily liable”. The owner or lessor of the property is “primarily”
      required to satisfy the demand towards tax with right to recover it
      from the tenant, sub-tenant or the occupant. If the landlord or the       G
      owner is obliged to make payment of whole amount of tax inclusive
      of his own share and share of the tenant, sub-tenant or the
      occupant, the owner or lessor has to be conferred with the power
      to recover the portion of tax payable by the tenant, sub-tenant or
1
(2003) 10 SCC 533                                                               H
524            SUPREME COURT REPORTS                          [2018] 9 S.C.R.


A           occupant who is actually enjoying the property and putting it to
            use for commercial or non-residential purpose. The legislature
            has taken note of the fact that a large number of properties in the
            metropolitan city of Calcutta are in occupation of tenants, sub-
            tenants or occupants on a comparatively small amount of rent or
            lease money. In such a situation, to impose entire burden of tax on
B
            the owner or lessor, would be inequitable, more so when the
            tenancy law does not allow increase in rent beyond a particular
            limit and the right of eviction of the landlord is restricted to the
            grounds under the Tenancy Act. By the impugned provisions of
            the Act, therefore, the legislature has thought of apportioning the
C           tax burden between owner or the lessor as one party and the
            tenant, sub-tenant or occupier as the other parties. The whole
            amount of tax is recoverable from the lessor and may also
            be recovered from the tenant or sub-tenant through
            attachment of the rent. In case where the lessor or landlord
            has paid the whole tax including the portion of tax payable
D
            by the tenant or sub-tenant, the landlord has to be equipped
            with the power to get himself reimbursed by recovery of
            the portion of tax paid by him on behalf of the tenant. Section
            231 of the Act, therefore, creates a fiction that the “tax”
            apportioned on the tenant would be treated as “rent” and
E           would be recoverable as such. The word “rent” has not
            been defined in the tenancy law and this Court has taken
            note of this legal position in the case of Puspa Sen Gupta v.
            Susma Ghose (1990) 2 SCC 651 which arose out of the
            provisions of the Tenancy Act applicable to West Bengal.
            Rent is a compendious expression which may include lease
F
            money with service charges for water, electricity and other
            taxes leviable on the tenanted premises.”
                                                         (underlining is ours)
             As already seen, in paragraph 45 of the report, extracted above,
      the provisions of Section 231 of the 1980 Act was also considered and it
G     was held that municipal taxes would be a part of the “rent” payable by
      the tenant to the landlord.
              12. While the provisions of the 1980 Act make it very clear that
      an occupier as distinguished from the owner i.e. ‘person primarily liable’
      is entitled to pre-assessment notice and to participate in the assessment
H
         M/S POPAT & KOTECHA PROPERTY & ORS. v.                                  525
          ASHIM KUMAR DEY [RANJAN GOGOI, J.]

proceedings and also to question the same by way of an appeal, etc.              A
assessment of a part of the premises in occupation of a tenant or different
parts of such premises in occupation of different tenants is not
contemplated under the 1980 Act. Rather, from the provisions of Section
230 of the 1980 Act, it is clear that the person to be assessed to tax is the
person primarily liable to pay i.e. the owner who is vested with the right
                                                                                 B
to recover the portion of the tax paid by him on behalf of the tenant, if
required, proportionately to the extent that the value of the area occupied
bears to the value of the total area of the property. Under the 1980 Act,
in the event of any default on the part of the owner to pay the tax the
rent payable by the tenant(s) is liable to be attached.
       13. In the present case, default on the part of the respondent-           C
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.                                 D
       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.
                                                                                 E
Ankit Gyan                                                     Appeal allowed.




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