Whether landlord is bound to deduct TDS on rental income of Rs 40,000/ per month given for household use in india?

 No, the landlord is not bound to deduct TDS (Tax Deducted at Source) on rental income of ₹40,000 per month given for household (residential) use in India.

According to Section 194IB of the Income Tax Act, TDS is only required to be deducted by the tenant if the monthly rent paid exceeds ₹50,000. The obligation for TDS deduction does not apply for rent payments below this threshold, whether the use is residential or commercial.

So, for a monthly rent of ₹40,000, there is no requirement for the landlord or the tenant to deduct TDS under current Indian tax laws.

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Whether the court should interfere in notice issued by Municipal Corporation for demolition of dilapidated structure?

This Court has examined the notice dated 18.11.2020, issued by respondent Nos. 3 and 4. It prima facie does not appear to be issued in a mechanical manner. There is reference made to the area of two storied structure, the condition of the structure as being bad and at various places even the walls having cracks in the said structure. It is then stated that demolition of the structure is necessary for larger good and to avoid any danger to human life. A structural audit report dated 27.10.2020 is on the record on the file of respondent Nos. 3 and 4 and having applied the same, the said notice has been issued. {Para 20}

21. In this backdrop, there is substance in the reliance placed by the learned counsel appearing for respondent Nos. 3 and 4 on judgement in the case of M/s. Sai Auto Parts and others Vs. State of Maharashtra and Ors. (supra), wherein the Division Bench of this Court has observed that the Court cannot sit in appeal over the satisfaction of the respondent-Corporation in such matters. There is also substance in reliance placed by learned counsel for respondent Nos. 3 and 4 on judgment in the case of Dattatray Ambo Mhatre & Ors. Vs. The State of Maharashtra & Ors.(supra), wherein the Division Bench of this Court observed that the Municipal Corporation is the only authority empowered to make such structural audits and to arrive at a decision to issue such a notice under Section 264 of the said Act, upon being satisfied, that it is necessary in the facts and circumstances of the individual case. Reliance placed on observations made by the Division Bench of this Court in the case of High Court on its own motion (in the matter of Jilani Building at Bhiwandi) Vs. Bhiwandi Nizampur Municipal Corporation & Ors.(supra) is also apposite for the reason that in the said judgment, it has been laid down as to why Courts ought not to interfere in such matters where safety of human lives is involved. It has been emphasized that a life lost is lost forever and the alternative is unimaginable. The learned counsel is also justified in relying upon the observations made by the Division Bench of this Court in the case of Municipal Corporation of Greater Mumbai Vs. State of Maharashtra(supra), wherein, inter alia, it is indicated that tenancy rights and dispute between the landlords and tenants would have nothing to do with a situation covered under Section 264 of the said Act, because what is important in such cases, is the material indicating satisfaction of the concerned authority, while issuing notice.

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 1871/2022

Decided On: 22.06.2022

Mahadeo  Vs. Vimalbai and Ors.

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation:  MANU/MH/4921/2022

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Whether married daughters of landlord are his dependents for the purpose of claiming eviction of tenant?

 The court is of the view that the status of financial well-being of a landlord or his family members-wife and children, who were dependent upon him, is not the test of bonafide requirement. All that was to be seen was whether there was a suitable alternate accommodation available with the landlord, for him to use or for providing the same to his daughters. No such suitable alternate accommodation has been shown. The impugned judgment has misdirected itself in an inquiry about the landlord's, his wife's and of the business of the husband's of the dependent daughters' or their economic well-being or in concluding that simply because the daughters of the petitioner were married, "happy with their matrimonial life" and alternate accommodation was available with their respective husbands, therefore, there was no need for them to start their business or to ask their father to provide them an accommodation for business. {Para 20} 

Ordinarily, for a daughter, irrespective of her matrimonial status, her paternal/maternal home is always a psychological, physical and emotional sanctuary, a place to which she can relate and return to freely, irrespective of how far she is geographically located from her parents. The law provides for eviction of a tenant on the need of dependants. Married daughters are included among dependents of their parents, for commercial/residential space.5 The test in law is about the dependency of the children upon the landlord/landlady when the property of the parent is in question.

22. In the present case, the married daughters are dependent upon their father for space to start their business in Delhi. The dependency was not pleaded on the husbands. The petition is maintainable. The daughters' need continues, so does the need of the petitioner. 

IN THE HIGH COURT OF DELHI

RC. Rev. 367/2018, CM Appls. 13453/2023 and 22041/2023

Decided On: 07.07.2023

 Nisar Ahmed  Vs.  Agya Pal Singh

Hon'ble Judges/Coram:

Najmi Waziri, J.

Citation:  MANU/DE/4291/2023.

Read full Judgment here :Click here

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Should the court refuse an eviction decree to the landlord if the husbands of his married daughters have accommodation?

 The landlord wanted his property not only for his daughters but for himself also. Assuming that accommodation was available with the respective husbands of the two daughters, surely it was not expected of the father-in-law to take assistance of his daughters and request them to make available such space through their respective husbands, for him to start a business enterprise. And why should he? The law does not require him to do so. Would it not compromise his self-respect and affect delicate family relations? Furthermore, the nature of the proposed business could be discussed/re-assessed/altered at any stage when the accommodation was made available, the landlord was not required to indicate the nature of business he intended to initiate. {Para 16}

IN THE HIGH COURT OF DELHI

RC. Rev. 367/2018, CM Appls. 13453/2023 and 22041/2023

Decided On: 07.07.2023

 Nisar Ahmed  Vs.  Agya Pal Singh

Hon'ble Judges/Coram:

Najmi Waziri, J.

Citation:  MANU/DE/4291/2023.

Read full Judgment here :Click here

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Should a landlord have all information about the income and assets of his wife and disclose it before the court to seek eviction of a tenant?

 

 The impugned judgment then delves into the examination of nature of business being carried out by the landlord i.e. whether the hotel business was being run from 19 rooms to 13 rooms and how it was being run. It also doubted the credibility of the landlord on the ground that, since his family comprised only his wife and two daughters, he should have known the received income of his wife from her business of running a hotel. It further records that the hotel business was being run from the first and second floor of a building which was rented by the same Wakf-ul-aulad, to a partnership firm in which his brothers, sisters and sister-in-law were partners. The learned ARC inferred dishonesty and concealment on the part of the petitioner because he did not disclose these aspects and of his wife's business. {Para 11}

12. The court is of the view that the aforesaid inquiry was neither relevant nor necessary because for the purposes of a petition under section 141(1)(e) read with section 25B of the DRC Act, only the availability of suitable alternate accommodation is to be seen. It also presupposes that a husband has a right to know all details of his wife's business and financial affairs, as if the wife had no right to financial and business confidentiality or personal independence or privacy. There cannot be an assumption that the wife is subservient to her husband and is obliged to disclose to or share with her husband details of all her financials. In the present case, it was only to be seen: Whether a suitable alternate accommodation was available on the ground floor for the petitioner and/or his daughters for starting the business.

21. A wife is neither an appendage of nor an adjunct to her husband. Her identity does not merge with or get subsumed in her husband's identity. In law, she retains her individual entity. She retains her natural right to pursue her dreams, aspirations and the desire and need to be financially independent or otherwise do some meaningful social work. Idle luxuriation may not be the life-goal of many a woman or to be simply known as a rich man's wife. There is a certain self-worth which a person acquires by running her or his own business/commercial enterprise, vocation and professional activity. This aspiration cannot be questioned in proceedings for eviction of a tenant on the ground of bonafide requirement of the tenanted premises.

IN THE HIGH COURT OF DELHI

RC. Rev. 367/2018, CM Appls. 13453/2023 and 22041/2023

Decided On: 07.07.2023

 Nisar Ahmed  Vs.  Agya Pal Singh

Hon'ble Judges/Coram:

Najmi Waziri, J.

Citation:  MANU/DE/4291/2023.

Read full Judgment here :Click here

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Should a landlord disclose his entire financial transactions and file details of his income tax returns to prove his bona fide need for eviction of a tenant?

 

 The court is of the view that disclosure of his entire financial affairs by a tenant is neither essential in an eviction petition nor is it mandatory for the landlord to disclose all properties owned by her/him. Receipt of rentals from leased properties is a legitimate exercise. A plea of bonafide requirement has to be pivoted on the fact that the landlord had no other suitable alternative accommodation and there was a need for the same, not a mere wish. The landlord was not required to file details of his income tax returns and not filing the same along with the eviction petition would neither whittle away nor cast a doubt on the bonafide need, which is otherwise made out in the eviction petition.1 The "sufficiency" of income of a landlord or that he was well-off cannot be an issue for examination in eviction proceedings under the Delhi Rent Control Act.2 For who can sit in judgment as to what is sufficient finance for a person or his/her family. There can be no check, hindrance or curtailment to aspirations of an individual.{Para 10}.

IN THE HIGH COURT OF DELHI

RC. Rev. 367/2018, CM Appls. 13453/2023 and 22041/2023

Decided On: 07.07.2023

 Nisar Ahmed  Vs.  Agya Pal Singh

Hon'ble Judges/Coram:

Najmi Waziri, J.

Citation:  MANU/DE/4291/2023.

Read full Judgment here :Click here

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Whether the rent control Court has jurisdiction to decide eviction of tenant proceeding instituted before amendment Act 2013 of S 83 of wakf Act?

 At the outset, the respondent has questioned the maintainability of the eviction petition before the learned ARC on the ground that under section 83 of the Wakf Act, 1995 only the Wakf Tribunal had jurisdiction to deal with matters relating to eviction of a tenant of a Wakf property, section 85 of the said Act bars jurisdiction of other courts in respect of the matters which the Wakf Tribunal is empowered to decide, therefore, the eviction petition could not have been decided or entertained by the learned ARC. Reliance is placed by the respondent upon the following judgments: Rashid Wali Beg vs Farid Pindari MANU/SC/1001/2021 : (2022) 4 SCC 414; Syed Amir Ali vs Anjuman-e-Maidan [CM(M) 521/2021 decided on 02.12.2021 by High Court of Delhi; and Mehnish Adil vs Delhi Wakf Board 2002 (286) DLT 654.

6. Refuting the aforesaid contentions, the learned counsel for the petitioner submits that in view of the decision of the Supreme Court in Ramesh Gobindram vs Sugra Humayun Mirza Wakf MANU/SC/0659/2010 : (2010) 8 SCC 726, which while dealing with an eviction petition prior to the amendment of section 83 of the Wakf Act in November, 2013 held that an eviction petition against a Wakf property would also be maintainable before a Civil Court. In Rashid Wali (supra) the Supreme Court held as under:

"....45. Interestingly, the basis of the decision in Ramesh Gobindram was removed through an amendment under Act 27 of 2013. As we have stated elsewhere, Ramesh Gobindram sought to address the question whether a Waqf Tribunal was competent to entertain and adjudicate upon disputes regarding eviction of persons in occupation of what are admittedly waqf properties. Since this Court answered the question in the negative, Section 83(1) was amended by Act 27 of 2013 to include the words, "eviction of tenant or determination of rights and obligations of the lessor and lessee of such property"."

7. However, the 2013 Amendment does not make section 83 of the Wakf Act applicable retrospectively. The eviction petition relates to 24.12.2009, i.e. more than over four years before the amendment came into effect. No notification was issued regarding transfer to the Wakf Tribunal of all cases relating to wakfs pending before the ARC under the DRC Act. Interestingly, this issue was never raised before by the tenant. On 11.02.2015, this court had remanded the matter to the learned ARC for decision on the issue of leave to defend. The said remand and direction received affirmation of the Supreme Court on 07.05.2015.

8. In view of the above, the eviction petition was maintainable before the learned ARC. The tenant's contentions to the contrary are untenable and are rejected. 

IN THE HIGH COURT OF DELHI

RC. Rev. 367/2018, CM Appls. 13453/2023 and 22041/2023

Decided On: 07.07.2023

 Nisar Ahmed  Vs.  Agya Pal Singh

Hon'ble Judges/Coram:

Najmi Waziri, J.

Citation:  MANU/DE/4291/2023

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Whether the court can direct tenant to pay enhanced rent during pendency of eviction proceeding as per O 15-A of CPC?

 There is no gainsaying that an order under Order 39 Rule 10 CPC and/or Order XV-A CPC is rendered as an interim measure to safeguard the interest of the plaintiff/owner. This ‘order as an interim measure’ is to be carefully passed and the provisions loosely interpreted to safeguard the interest of a party that claims ownership over a property and assails unauthorized occupation of the same. In light of the very nature of relief contemplated under the above provisions, there is no reason to deprive a plaintiff of fair protection of his interest during pendency of the trial just because the trial is near its end or because there is dispute as to whether the property was tenanted as one or three/four. {Para 11}

12. In the present case, the appellant has placed on record certain registered lease deeds, to show that rentals upto Rs.145/- are being charged from tenants in the vicinity of the property in question. In the application filed, though the appellant had sought use/occupation charges @ Rs.12 lacs per month, during the course of submissions before the Trial Court, the demand was statedly restricted to Rs.8 lacs per month. Despite considering the scope of Order XV-A CPC, the Trial Court restricted its decision to direct payment only to ‘admitted’ rate of rent. The same does not find favour with this Court.

14. Considering the aforesaid and the material on record, this Court is of the opinion that interest of justice would be served if the respondent/defendant is directed to deposit before the Trial Court arrears @ Rs.2 lacs per month since the date of filing of the suit till its pendency.

 Neutral Citation Number : 2023:DHC:1893

 IN THE HIGH COURT OF DELHI AT NEW DELHI

+ FAO 7/2023 & CM APPL. 1225/2023

SMT. SWARAN MAKKAR Vs M/S DAYAL CHAND KISHORI LAL

CORAM:

HON'BLE MR. JUSTICE MANOJ KUMAR OHRI

Pronounced on : 16.03.2023

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Can the tenant refuse to pay rent in the absence of a specific clause in that regard in the sale agreement?

It is settled position of law that an agreement holder who is the tenant of the property should continue to pay the rent, unless there is a specific clause in the sale agreement that the tenant need not pay the rent from the date of sale agreement. Hence, the contention of the learned counsel for the petitioner that the jural relationship of the landlord and tenant had got terminated due to the sale agreement is not legally sustainable. {Para 8}

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

C.R.P.(MD).No.323 of 2023 and CMP(MD).No.1537 of 2023

K.Jeyakumar  Vs L.Arunachalam 

CORAM

 MR.JUSTICE R.VIJAYAKUMAR

DELIVERED ON: 13 .02.2023

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Can the Electricity board refuse to give electric supply to the tenant if the landlord fails to issue a no-objection certificate?

It is now well settled proposition of law that electricity is

a basic amenity of which a person cannot be deprived. Electricity

cannot be declined to a tenant on the ground of failure/refusal of

the landlord to issue no objection certificate. All that the

electricity supply authority is required to examine is whether the

applicant for electricity connection is in occupation of the

premises in question.

 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 810 OF 2022

DILIP(DEAD) Vs  SATISH & OTHERS 

Author: INDIRA BANERJEE J.

Dated: MAY 13, 2022

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Can Wakf tribunal decide suit relating to encroachment and tenancy over wakf property?

 It is clear that the Legislature has

added the underlined portion in the earlier

Section 83. If the amended Section 83(1) is

perused, it is quite apparent that any dispute,

question or other matter relating to Waqf

property, eviction of a tenant or determination of

rights and obligation of the lessor and the lessee

of such property i.e. Waqf property is to be

decided by the Waqf Tribunal. The amended

provision came into effect on 1st November 2013 and

naturally when the Waqf Tribunal decided the

Application on 5th May 2014, it was within its

jurisdiction to consider the dispute of tenancy

also, which was raised. This is apart from the

fact that the basic dispute the Tribunal was

dealing with, was whether or not the Applicant was

a trespasser as found under Section 54 of the Waqf

Act. To decide that dispute, it was required to

deal with the defence of the claim of tenancy.

10. Tribunal considered the admitted facts,

the law and opportunity given to applicant by

C.E.O. and rejected the application. The Applicant

is unable to show that the impugned order is not

correct, legal or proper. Consequently, there is

no substance in the Revision application.{Para 9}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CIVIL REVISION APPLICATION NO.127 OF 2014

Ishtaque Ali Sayyad Ali, Vs  Maharashtra State Wakf Board,

CORAM: A.I.S. CHEEMA, J.

DATED : 17TH FEBRUARY, 2015.

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Is the right to get an Electricity supply a fundamental right under Article 21 of the Constitution?

 The civil suit filed by the petitioner seeking mandatory injunction for restoration of electricity having been dismissed on the ground of an alternative remedy will not debar him from filing a petition under Article 226 of the Constitution of India as it is a settled proposition of law that electricity is one the Fundamental Rights for existence and protected under Article 21 of the Constitution of India, subject to the petitioner complying with other requirements. {Para 7}

IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P.(C) 890/2022 

ASHISH GUPTA Vs TATA POWER DELHI DISTRIBUTION LIMITED

CORAM:-  MR. JUSTICE SANJEEV SACHDEVA 

Dated: 14.01.2022 

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Whether civil court or rent court will have jurisdiction to try a suit if tenant is government undertaking?

 A perusal of the scheme of the Act 1976 would show that from the appointed day, right, title and interest of Burmah Shell with effect to Section 5(1) stood transferred and vested with the Central Government and by virtue of Section 7(2), the vesting of tenancy rights with the Central Government stood further transposed and vested in Bharat Petroleum Corporation Ltd. and that became a statutory tenant by virtue of Section 7(3) of the Act. To that extent, Section 11 of the Act has an overriding effect to the provisions of other laws. That being so, the jurisdiction indeed of a civil Court is impliedly barred from the field covered specifically by the provisions of the Act 1973 and that being the complete code determining the rights of a tenant/landlord to the exclusion of the other laws, we find no error in the view expressed by the High Court in the impugned judgment holding that the jurisdiction of the Civil Court is held to be barred and remedial mechanism for ejectment could be possible only under the provisions of the Act 1973. {Para 21}

Supreme Court

JUSTICE AJAY RASTOGI JUSTICE ABHAY S. OKA

SUBHASH CHANDER & ORS. Vs. M/S BHARAT PETROLEUM CORPORATION LTD.(BPCL) & ANR.

CIVIL APPEAL NO(s). 7517 OF 2012

28th January 2022

Author: Rastogi, J.

Citation:  2022 ALL SCR (ONLINE) 95

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Is the landlord a proper party in a suit for perpetual injunction for restraining Municipal corporation from demolishing rented premises?

The question is: whether the landlord is a necessary or proper party to the suit for perpetual injunction against the Municipal Corporation for demolition of demised building? The landlord has a direct and substantial interest in the demised building before the demolition of which notice under Section 351 was issued. In the event of its demolition, his rights would materially be affected. His right, title and interest in the property demised to the tenant or licences would be in jeopardy. It may be that the construction which is sought to be demolished by the Municipal Corporation was made with or without the consent of the landlord or the lessor. But the demolition would undoubtedly materially affect the right, title and interest in the property of the landlord. Under those circumstances, the landlord necessarily is a proper party, though the relief is sought for against the Municipal Corporation for perpetual injunction restraining the Municipal Corporation from demolition of the building.

 Supreme Court of India

M/S. Aliji Momonji & Co vs Lalji Mavji & Ors on 12 July, 1996

Citations: JT 1996 (7) 53, 1996 SCALE (5)485

Author: K Ramaswamy

Bench: Ramaswamy, K.

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Whether landlord is entitled to get eviction decree if tenant fails to pay time barred rent?

The issue involved in this petition is; whether the plaintiff-landlord was entitled to decree of eviction in a suit filed on 5th September, 1994 on the ground of default in payment of rent for February, 1998 and December, 1990, even though the same fell beyond the period of three years prior to the date of the suit.

 At this stage we may clarify that the decree of eviction has been sustained by both the courts below on both the aforestated grounds namely personal necessity of the landlord and willful default in payment of rent by the tenant.

 In this case we are concerned with the ground of default which falls under Section 11(1)(d) and which states that where the amount of two months rent, lawfully payable by the tenant and due from him is in arrears by reason of non payment within the time fixed by the contract or in the absence of such contract by the last day of the month next following that for which rent is payable then such default would constitute ground for eviction. It is interesting to note that the expression used in Section 1 l(l)(d) is "lawfully payable" and not "lawfully recoverable" and therefore, Section 11(1)(d) has nothing to do with recovery or arrears of rent On the contrary Section 11 (l)(d) provides a ground for eviction of the tenant in the eviction suit. It is well settled that law of limitation bars the remedy of the claimant to recover the rent for the period beyond three years prior to the institution of the suit, but that cannot be a ground for defeating the claim of the landlord for decree of eviction on satisfaction of the ingredients of Section 11 (l)(d) of the said Act, 1982. In the case of Bombay Dyeing & Manufacturing Co. Ltd. v. The State of Bombay and Ors., reported in AIR (1958) SC 328 it has been held that when the debt becomes time barred the amount is not recoverable lawfully through the process of the court, but it will not mean that the amount has become not lawfully payable. Law does not bar a debtor to pay nor a creditor to accept a barred debt.

For the foregoing reasons special leave petition is dismissed.

 Supreme Court of India

Sri Bhimsen Gupta vs Sri Bishwanath Prasad Gupta on 3 February, 2004

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Should tenants of premises deposit total tax levied on the whole building at the time of filing of Municipal Appeal even though they occupy only a portion of it?

Bombay Provincial Municipal Corporations Act (1949), S.217 - Appeal - Maintainability - Increase in rateable value of property tax - Complaint filed by co-operative housing society - Order passed by Corporation fixing rateable value - Petitioners owners and occupiers of 5 premises in society filed appeal against order - Petitioners are required to deposit disputed increased tax for entire premises - Contention that petitioners can deposit increased tax for their premises only is liable to be rejected - Writ petition is liable to be dismissed.  (Para 17)

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

S.J. KATHAWALA, J.

Satyavati Ramprasad Ruia & Anr.Vs.The Municipal Corporation Of Brihan Mumbai & Anr.

Writ Petition No.938 of 2010

14th July, 2010

Citation: 2010(6) ALL MR 191

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Whether Municipal appeal is maintainable against issuance of property tax bill?

  It is now well-settled that the right to file an appeal is a creation of the statute. Section 406(1) provides of appeals against any rateable value or tax fixed or charged under this Act. Reference to rateable value in Sub-section (1) of Section 406, necessarily, pertains to tax on property. In view of the fact that under Section 127, other taxes such as taxes on vehicles, boats, animals, octroi, etc., are also levied, Sub-section (1) of Section 406 also refers to appeals against "tax fixed or charged" under the Act. Section 406(2)(b) specifically relates to appeal against a rateable value and Sub-clause (d) relates to appeal against any amendment made in the assessment book for property tax. It is not necessary to refer to Sub-clause (d) because that pertains to deposit of tax pending the entertainment of the appeal. Sub-clause (b) and (d), as we have already observed, postulate in relation to property tax appeals being filed only against rateable value. Sub-clause (c) of Section 406(2), no doubt, contemplates filing of an appeal against any tax. But, this sub-clause contemplates an appeal against such a tax in respect of which provisions exist for filing a complaint and the complaint being disposed of. Neither the Act, nor the Rules contemplate any complaint being filed against a bill a property tax and complaints, relating to property tax can only be filed against the rateable value. The Legislative intent, therefore, clearly is that it is only at the first stage, viz., the determination of the rateable value, that the appeals will be entertained and no appeal can be preferred against a bill levying tax as a consequence of the rateable value having been determined. The reason for this is obvious. The sending of a bill levying tax would amount to a mere mathematical calculation on the basis of the rateable value which is determined. If the determination of the rateable value can only be challenged by filing an appeal under Section 406(2)(b) or (d) and the same cannot be challenged once it has become final, then providing for appeal against the tax calculated on the basis of the rateable value would be meaningless.{Para 83}

84. It may happen that the rateable Value I may have been determined in gross violation of the provisions of the Act or the Rules and without following the procedure laid down in the Rules requiring giving the opportunity of filing a complaint by giving a public notice or a special notice. Where an owner has had an occasion or opportunity to file a complaint under the Rules against the proposed rateable value, but he fails to do so, no relief can be granted to him. If, on the other hand, in a rate case, such an opportunity has not at all been afforded, then merely for equitable reasons a Court should not and cannot entertain an appeal against the bill because such a provision does not exist. The appropriate remedy in such a case will be for the owner to take recourse to the constitutional remedies provided by Article 227 or Article 226 of the Constitution of India.

Gujarat High Court

Municipal Corporation Of The City ... vs Oriental Fire & General Insurance ... on 8 September, 1994

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Under which circumstances tenant can file a municipal appeal against fixation of rateable value?

 

The last question, which requires consideration is whether the occupiers or the tenants have a right of filing a complaint and thereafter, an appeal against the proposed assessments. Under Section 127 of the BPMC Act, various types of taxes are imposed. They are property taxes, and taxes, on vehicles, boats and animals. In addition thereto, the Corporation may also impose octroi, taxes on dogs, theatre tax, toll on animals and vehicles entering the city, etc. Section 406 is a provision, which, inter alia, provides for appeals against any rateable value or tax fixed or charged under this Act. Unlike other statutes, the Section does not specifically state as to who can file an appeal. The locus standi of the appellant will, however, have to be inferred from Sub-section (2) of Section 406. Clause (b) of Section 406(2) states that no appeal shall be entertained in respect of a rateable value unless a complaint has been previously, made to the Commissioner and such complaint has been disposed of. Clause (d) provides that an appeal against an amendment made in the assessment book shall be entertained only if a complaint has been disposed of. The implication of this, clearly, is that a right of appeal is given to such a person, who has a right to file a complaint to the Commissioner against the rateable value. This right to file a complaint is exercised only when, under Rule 16, a complaint is filed. The scheme of the Act and the Rules clearly is that the person primarily liable to pay the property tax is the owner or the lessor. Against the proposed rateable value, it is he, who is the person concerned or the person aggrieved. Rateable value once determiend can be adopted Under Rule 21 for the subsequent years. A tenant may come and go, but it is the owner, who is primarily concerned with the determination of the rateable value. As we have already observed, the Act and the Rules do not contemplate more than one complaint being filed in respect of the same property and for the same year. The Rules cannot be interpreted to lead to a result, where there will be conflicting assessment orders in respect of a single official year for the same property. It is no doubt true that it has been held in a number of cases that a person aggrieved will, certainly, have a right of appeal. But, who is the person aggrieved? In the case of rateable value, it can only be the owner and no one else. Under Section 139(1), the liability to pay the tax is fastened on the owner. The liability of the tenant of built-up premises is there only if tax remains unpaid and a notice under Section 140(1) arises'. Such a tenant, to whom a notice is issued under Section 140(1) may have a right to file an appeal under Section 406(2)(c), or under Section 406(1) itself. But, his right can only be in relation to the correctness of a notice issued under Section 140(1). He cannot challenge the fixation of the rateable value because that can only be challenged by the owner. Like other taxing statutes, direct or indirect, the right to file an appeal is only on the assessee. The fixation of rateable value cannot affect the tenant unless and until a notice under Section 140(1) is received by him. That notice is in the nature of a garnishee order and the payment made by him is not paid on his own account, but is paid on account of the landlord, or owner, and that is why Sub-section (4) of Section 140 provides that for any sum so paid by the occupier, he is entitled to the credit of the amount so paid by him. {Para 80}

81. It was vehemently contended that under Rule 15(2), notice is contemplated to be given to the occupier as well and, therefore, he can also file an appeal. As we have already noticed, the notice under Rule 15(2) to an occupier will necessarily be because of provisions of Rule 12(2). There may also be another category of tenants, who would be entitled to file complaints and receive notice under Rule 15(2). Those tenants would be the ones mentioned in Section 139(2). The said provision provides that if any land has been let for any term exceeding one year to a tenant and such tenant has built upon the land, the property taxes assessed upon the said land and upon the building erected thereon shall be primarily leviable on the said tenant or on any person deriving title through him. Therefore, when in Rule 15(2), reference is made to the owner or the occupier, it contemplates not only an occupier, who becomes liable by virtue of Rule 15(2), but it will also take in its ambit a tenant of land who becomes a person primarily liable to pay tax on the building erected on tenanted land. Because such a tenant is a person primarily liable to pay tax therefore, he will have a right to file an appeal.

82. It was also urged on behalf of the appellants, that the Small Cause Courts have, in some cases, been entertaining appeals against the bills raising the tax demand, even though no complaints had been filed and/or the rateable value had become final. Such appeals were filed by the tenants and, in some cases, by the owners themselves.

83. It is now well-settled that the right to file an appeal is a creation of the statute. Section 406(1) provides of appeals against any rateable value or tax fixed or charged under this Act. Reference to rateable value in Sub-section (1) of Section 406, necessarily, pertains to tax on property. In view of the fact that under Section 127, other taxes such as taxes on vehicles, boats, animals, octroi, etc., are also levied, Sub-section (1) of Section 406 also refers to appeals against "tax fixed or charged" under the Act. Section 406(2)(b) specifically relates to appeal against a rateable value and Sub-clause (d) relates to appeal against any amendment made in the assessment book for property tax. It is not necessary to refer to Sub-clause (d) because that pertains to deposit of tax pending the entertainment of the appeal. Sub-clause (b) and (d), as we have already observed, postulate in relation to property tax appeals being filed only against rateable value. Sub-clause (c) of Section 406(2), no doubt, contemplates filing of an appeal against any tax. But, this sub-clause contemplates an appeal against such a tax in respect of which provisions exist for filing a complaint and the complaint being disposed of. Neither the Act, nor the Rules contemplate any complaint being filed against a bill a property tax and complaints, relating to property tax can only be filed against the rateable value. The Legislative intent, therefore, clearly is that it is only at the first stage, viz., the determination of the rateable value, that the appeals will be entertained and no appeal can be preferred against a bill levying tax as a consequence of the rateable value having been determined. The reason for this is obvious. The sending of a bill levying tax would amount to a mere mathematical calculation on the basis of the rateable value which is determined. If the determination of the rateable value can only be challenged by filing an appeal under Section 406(2)(b) or (d) and the same cannot be challenged once it has become final, then providing for appeal against the tax calculated on the basis of the rateable value would be meaningless.

84. It may happen that the rateable Value I may have been determined in gross violation of the provisions of the Act or the Rules and without following the procedure laid down in the Rules requiring giving the opportunity of filing a complaint by giving a public notice or a special notice. Where an owner has had an occasion or opportunity to file a complaint under the Rules against the proposed rateable value, but he fails to do so, no relief can be granted to him. If, on the other hand, in a rate case, such an opportunity has not at all been afforded, then merely for equitable reasons a Court should not and cannot entertain an appeal against the bill because such a provision does not exist. The appropriate remedy in such a case will be for the owner to take recourse to the constitutional remedies provided by Article 227 or Article 226 of the Constitution of India.

85. In the case of a tenant to whom provisions of Section 139(2) are applicable, an opportunity is required to be given for filing a complaint and in such a case, the question of his filing an appeal only against the bill would not arise. Where, in respect of premises a tenant is required to make payment pursuant to a bill issue under Sub-section (1) of Section 140, the tenant may be a person aggrieved. His grievance, however, cannot be with respect to the rateable value, which is determined after notice is issued to the owner and the tenants grievance can only be limited to the validity of such a bill being issued to him under said Section 140(1). In such a case, as liability is fastened on him, but he had opportunity to challenge the rateable value, an appeal would be maintainable under Sub-section (1) of Section 406 itself. The scope of the appellate jurisdiction in such a case will, however, be very limited. As already observed, there can be no challenge to the fixation of the rateable value and the limited challenge which can be there is with regard to the calculation of the tax on the basis of the rateable value already finalised or when the necessary ingredients of Sub-section (1) of Section 140 exist which could justify the issuance of a bill under that provision.

Gujarat High Court

Municipal Corporation Of The City ... vs Oriental Fire & General Insurance ... on 8 September, 1994

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When can the court permit tenant to repair tenanted premises even if he has not given written notice to the landlord to repair premises?

 The learned counsel for the petitioner has asserted that giving of a notice in writing is also an equally mandatory part of the cause of action and, therefore, the same stood exhausted on the filing of the earlier petition by the respondent/tenant. He submits that without serving a fresh notice, the respondent could not have maintained a fresh petition before the learned Controller.{Para 13}

14. I am unable to agree with the submission made by the learned counsel for the petitioner. As noticed hereinabove, the purpose of a

notice under Section 44(3) of the Act is to put the landlord to notice that the tenanted premises are not in a habitable or usable state and require repairs. Though normally, the tenant is to give such a notice to the landlord before filing of the petition, the petition itself can be considered as a notice to the landlord of such state of affairs. In this regard, it is to be noted that the learned Controller can pass an order on a petition under Section 44(3) of the Act only after granting an opportunity of hearing to the landlord. In such hearing, the landlord can accept the contents of the petition with respect to the state of the tenanted premises and offer to carry out the repairs; or can dispute the contention of the tenant regarding the tenanted premises being un-inhabitable or unusable; or can dispute the estimate of cost required for the necessary repairs. The non-service of notice by the tenant prior to the filing of the petition does not in any manner, therefore, cause prejudice to the landlord. The service of prior notice may only be for the benefit of the tenant as in case the landlord agrees to the notice, the tenant may not be burdened with moving the learned Controller for seeking appropriate relief.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: 06.04.2021

 CM(M) 427/2020 & CM No.20355/2020

SURAJ PRAKASH PAHWA  Vs NAND LAL 

CORAM:

HON'BLE MR. JUSTICE NAVIN CHAWLA

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Whether court should order the tenant's eviction on the ground that the municipal corporation has issued demolition notices regarding rented premises if said order has lost efficacy?

  On a consideration of the facts and circumstances of this case, I am disposed to hold that it is open to a Court hearing the landlord's suit under Section 13(1)(hhh) of the Rent Act to enquire and find out whether there is a valid subsisting order of the municipal authorities, requiring the immediate demolition of the suit premises. The landlord can certainly produce such an order and rely upon the fact that he is directed by the municipal authorities to effect immediate demolition of the premises. But it is open to the defendants to adduce evidence and bring facts to the notice of the Court and show that the efficacy of the demolition order is considerably impaired on account of the subsequent or intervening events. If the Court is satisfied that having regard to the facts and circumstances of the case, the initial order of the municipal authorities has lost its efficacy, then the Court may not pass a decree for eviction against the tenants. {Para 11}

12. In the present case, as stated earlier, the municipal authorities, after issuing the first requisition addressed to the landlords, decided to act departmentally and demolish the premises. In fact the municipal authorities while engaged in the act of demolition through their contractors abandoned the further work only on condition that the tenants will effect the necessary repairs to the satisfaction of the municipal authorities. As told by the Municipal Engineer, the repairs were, in fact, made. The tenants also paid the labour charges incurred by the municipal authorities while they were engaged in the demolition work and thereafter no further action was either contemplated or in fact taken by the municipal authorities. All these intervening facts and events clearly show that the urgency implicit in the demolition order is no longer in existence. No emergent action is required in the matter. Once the Court is convinced about all this, the Court cannot act on the earlier order and proceed to pass a decree for eviction. The satisfaction that is contemplated by Section 13(1)(hhh) of the Rent Act is not a mere formal thing. The Court must apply its mind to all the facts and circumstances of the case including the order of demolition and then come to the conclusion one way or the other : i. e. whether or not a decree for eviction should be passed against the tenant. The landlord is merely carrying out the order issued by the municipal authorities, who have issued the order in public interest. If the municipal authorities are no longer interested in the demolition of the premises, the landlord cannot be allowed to use it as a handle or lever to somehow evict the tenants from the suit premises

Bombay High Court

Mrs. Piadad Fernandez vs K.M. Ramesh on 22 January, 1970

Equivalent citations: (1970) 72 BOMLR 569 a

Bench: S Bhasme

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