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

Citation: [2018] 9 S.C.R. 518 · Decided: 09-08-2018 · Supreme Court of India · Bench: RANJAN GOGOI · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2018] 9 S.C.R.
M/S POPAT & KOTECHA PROPERTY & ORS.
v.
ASHIM KUMAR DEY
(Civil Appeal No. 8149 of 2018)
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
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 –
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,
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
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
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
  [2018] 9 S.C.R. 518
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the portion of the tax paid by him on behalf of the tenant – Thus,
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
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
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]
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
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
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
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
M/S POPAT & KOTECHA PROPERTY & ORS. v.
ASHIM KUMAR DEY
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[2018] 9 S.C.R.
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 

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