Eviction under Delhi Rent Act.

Delhi Rent Act to prevail upon NDMC Act.

Effect of arrears of House tax:

The question is whether non-payment of property tax recoverable from the tenant as rent can be a ground for his eviction/ejectment from the premises. The Rent Act is beneficial and also restrictive in nature. It is primarily an Act to provide for the control of rents and evictions. It is settled that while interpreting the provisions of this Act, the Courts are under a legal compulsion to harmoniously read the provisions of the Act so as to balance the rights of the landlord and the obligations of the tenant towards each other, keeping in mind that one of the objects of the legislature while enacting the Rent Act was to curb the tendency of the greedy landlords to throw out the tenants paying lower rent and to rent out the premises at the market rate.

Delhi Rent Act:

Section 14 occurring in Chapter 3 of the Rent Act provides for controlling of eviction of tenants. It puts an embargo as regards recovery of possession of any premises at the instance of the landlord unless the Controller satisfies himself as regards existence of any of the grounds specifically referred to in the proviso appended thereto.

Section 2(i) of the Rent Act defines the “premises”. Section 3(c) states, “nothing in the Act shall apply to any premises whether residential or not, whose monthly rent exceeds Rs. 3,500/-“. Sub-section (2) of Section 7 puts an embargo on the landlord not to recover from the tenant any amount of tax on the building or land imposed in respect of the premises occupied by the tenant. This provision is as under:

“(2) Where a landlord pays in respect of the premises any charge for electricity or water consumed in the premises or any other charge levied by a local authority having jurisdiction in the area which is ordinarily payable by the tenant, he may recover from the tenant the amount so paid by him; but the landlord shall not recover from the tenant whether by means of an increase in rent or otherwise the amount of any tax on building or land imposed in respect of the premises occupied by the tenant.”

Section 50 of the Rent Act bars the civil court to entertain any suit or proceedings insofar as it relates to the fixation of standard rents in relation to any premises to which the Rent Act applies or to eviction of any tenant therefrom or to any other matter which the controller is empowered by or under the said Act.

NDMC Act:

It is also relevant to notice two provisions of the NDMC Act namely; sub-sections (1) and (3) of Section 67 which are as under:

“67. Apportionment of liability for property tax when the premises are let or sub-let.-(1) If any land or building assessed to property tax is let, and its rateable value exceeds the amount of rent payable in respect thereof to the person upon whom under the provision of section 66 the said tax is leviable, that person shall be entitled to receive from his tenant the difference between the amount of the property tax levied upon him and the amount which would be leviable upon him if the said tax was calculated on the amount of rent payable to him. (2) ……………..

(3) Any person entitled to receive any sum under this section shall have, for the recovery thereof, the same rights and remedies as if such sum were rent payable to him by the person from whom he is entitled to receive the same.”

Yet another provision which requires consideration is Section 411 of the NDMC Act, which reads as under:

“411. Other laws not to be disregarded.- Save as provided in this Act nothing contained in this Act shall be construed as authorising the disregard by the Council or the Chairperson or any municipal officer or other municipal employee of any laws for the time being in force.”

Effect of Non obstante cluse:

While the normal principle is that the latter enactment will prevail in cases where the latter enactment has a non-obstante clause, that is, giving it overriding effect and secondly, if it is also held to be a special enactment with regard to the matter in issue. In the instant case, the earlier enactment has a non-obstante clause in Section 14 which grants protection to the tenant from being evicted from any premises “notwithstanding anything to the contrary contained in any other law or contract, no order of decree for the recovery of possession of any premises shall be made by any Court or Controller in favour of the landlord against a tenant.” Thus the earlier enactment which is a special enactment has a non-obstante clause and the latter enactment which is not a special enactment as far as landlord tenant issue is concerned and the same does not have a non-obstante clause and in fact, has a section namely Section 411 which provides that other laws not to be disregarded.

Precedents on conflict of laws:

In Life Insurance Corporation of India v. D.J. Bahadur and Ors., (1981)1 SCC 315, this Court was considering a conflict between the Industrial Disputes Act, 1947 and the Life Insurance Act, 1956. It was held that so far as matters concerning industrial dispute are concerned, the Industrial Disputes Act would prevail over the latter enactment i.e. Life Insurance Corporation of India Act.

In Sanwarmal Kejriwal v. Viswa Co-operative Housing Society Ltd. and Ors., (1990) 2 SCC 288, it was held that Rent Act of 1947 will prevail over the Maharashtra Co-operative Societies Act, 1960, so far as the protection of the tenant from eviction is concerned. Here also, both the Acts held a non-obstante clause but still the earlier enactment was held to cover the field and hence, was to be given primacy over the latter enactment.

As seen from the abovementioned judgments, this Court has held that an earlier enactment will prevail over a latter enactment even if, there is a non-obstante clause in the latter enactment, if it were to be held that the earlier enactment is a special enactment on the particular subject being in issue.

Assuming that the latter enactment prevailing over the earlier enactment were to apply to this case, the two enactments have to be harmoniously construed so as to ensure that the latter enactment does not cause violence to the intent of the earlier enactment.

In St Stephen’s College v. University of Delhi, (1992)1 SCC 558, it has been held thus:-

“140. … The golden rule of interpretation is that words should be read in the ordinary, natural and grammatical meaning and the principle of harmonious construction merely applies the rule that where there is a general provision of law dealing with a subject, and a special provision dealing with the same subject, the special prevails over the general. If it is not constructed in that way the result would be that the special provision would be wholly defeated”.

Similarly, in Gobind Sugar Mills Ltd. v. State of Bihar and Ors. (1999) 7 SCC 76 this Court has held as under:

“10. While determining the question whether a statute is a general or a special one, focus must be on the principal subject-matter coupled with a particular perspective with reference to the intendment of the Act. Keeping in mind this basic principle, we will have to examine the provisions of the two Acts to find out whether it is possible to construe harmoniously the provisions of Section 4 of the Finance Act and Section 49 of the Sugarcane Act……….”

In Commercial Tax Officer, Rajasthan v. Binani Cements Limited and Anr. (2014) 8 SCC 319, it was held that when a general law and a special law dealing with the same aspect dealt with by the general law are in question, the general law to the extent dealt with by the special law is impliedly repealed.

The object of the Rent Act is to provide protection to tenants who under common law, including Transfer of Property Act could be evicted from the premises let out to them at any time by the landlord on the termination of their tenancy. It restricts the right of the landlord to evict the tenant at their will. It is a special law in relation to landlord and tenant issue. Therefore, the Rent Act has to prevail insofar as landlord and tenant issue is concerned.

Arguments:

Let us now consider the judgments relied upon by Shri Dushyant Dave. In Karnani Property Ltd. (supra) by agreement of the parties, the rent fixed included payment of the additional amenities and services. In Bombay Municipal Corporation (supra) the question relating to eviction of a tenant has not been considered. In Raju Kakara Shetty (supra) the statutory right to recover the education cess in respect of demised premises from the occupant–tenant was quantified by agreement of the parties. In D.C. Bhatia (supra) this Court has considered the validity of Section 3(c) of the Delhi Rent Control Act, 1958. In Calcutta Gujarati Education Society (supra) this Court has not considered the eviction of a tenant nor the interplay between a provision similar to sub-section (2) of Section 7 of the Rent Act and Section 231 of the Calcutta Municipal Corporation Act, 1980 which is pari materia with Section 67(3) of the NDMC Act. Hence, these judgments have no application to the facts of the instant case.

Conclusion:

Therefore, we are of the view that though the Rent Act is an earlier Act when compared to the NDMC Act, it is a special enactment with regard to the matter in issue and has a non-obstante clause. The NDMC Act is not a special enactment insofar as landlord-tenant issue is concerned and it contains Section 411 which provides that other laws not to be disregarded. Section 67(3) of the NDMC Act merely gives a right to recover the tax in respect of the premises as rent. It does not override the Rent Act insofar as obviating the effect of Section 7(2) of the Rent Act. In our opinion, the tax recoverable from the tenant under Section 67(3) of the NDMC Act as arrears of rent by the appellant cannot be considered to be forming part of the rent for the purpose of seeking eviction/ejectment of the respondent who defaults in payment of such recoverable tax as rent.

[Source: Atma Ram Properties Pvt. Ltd. vs The Oriental Insurance Co. Ltd., decided by SC on 6 December, 2017]
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