EIH LIMITEDversusNADIAVIRJI

                         [2022] 6 S.C.R. 1011                              1011


                            EIH LIMITED                                    A
                                   v.
                           NADIA A VIRJI
                (Civil Appeal Nos. 4797-4799 of 2022)
                          AUGUST 01, 2022                                  B
         [M. R. SHAH AND B. V. NAGARATHNA, JJ.]
       West Bengal Premises Tenancy Act, 1997 – ss. 5(8), 3(f)(i),
18 – Applicability of – Civil Procedure Code, 1908 – Or.7, r.11 –
Rejection of Plaint – Transfer of Property Act, 1882 – s. 106 –
                                                                           C
Municipal Tax as Rent – A tenancy agreement was executed between
the appellant (landlord) and the respondent (tenant) – Under the
Tenancy Agreement, the rent was fixed at Rs.10,000/- per month –
Further, the liability to pay the taxes including surcharge and water
tax/fees was also upon the tenant – The appellant terminated the
tenancy by issuing notice u/s. 106 of TPA – Upon expiry of the notice      D
period, the appellant filed a eviction suit – According to the appellant
as the respondent is liable to pay taxes in view of the 1997 Act, the
total rent exceed the ceiling limits of 10,000/- – Hence, the Act 1997
is not applicable and therefore the Landlord terminated the tenancy
by issuing notice under TP Act – The respondent filed application for
                                                                           E
rejection of plaint, inter-alia, on the ground that the suit was barred
by reasons of the provisions of the Act 1997 being applicable
because the rent of the premises was Rs.10,000/- and the tenancy
being for commercial purpose is not exempted u/s. 3(f)(i) of the Act,
1997 – Single Judge of the High Court allowed the said application
and rejected the plaint – Division Bench of the High Court dismissed       F
the appeal – On appeal, held: As per the tenancy agreement, the
rent payable would be Rs. 10,000/- per month and the liability to
pay municipal taxes is separate and distinct on the tenant – Merely
because the obligation to pay half of the property tax and surcharge
would be upon the tenant as per s. 230 of the Kolkata Municipal
                                                                           G
Corporation Act, 1980 and the tenant is obliged to pay his share of
municipal tax as an occupier of the premises u/s. 5(8) of the Act,
1997 and merely because for the purpose of recovery of the tax
due from the tenant, such tax apportioned can be recovered as rent,
such tax cannot become part of the rent of the premises which is
tenanted – The terms and conditions mentioned in the tenancy               H
                                   1011
1012            SUPREME COURT REPORTS                           [2022] 6 S.C.R.


 A     agreement are required to be considered – The monthly rent due
       and payable was Rs. 10,000/- per month, the High Court rightly
       observed and held that the Act, 1997 shall be applicable and
       therefore the civil suit filed by invoking s.106 of the TP Act is impliedly
       barred – The plaint was rightly rejected by the High Court – Kolkata
       Municipal Corporation Act, 1980 – ss. 230, 231.
 B
             Dismissing the appeals, this Court
             HELD: 1. The short question which is posed for the
       consideration of this Court is, “whether, share of municipal tax
       due and payable by the tenant under Section 230 of the Act 1980
 C     and Section 5(8) of the Act 1997 shall be included within the
       expression ‘rent’ or in other words, the share of municipal tax
       due and payable by the tenant can be said to be a part of the rent
       of the premises let out?” It is the case on behalf of the landlord
       that as under Section 5(8) of the Act 1997, every tenant is under
       an obligation to pay his share of municipal tax as an occupier of
 D     the premises in accordance with the provisions of the Kolkata
       Municipal Corporation Act, 1980 and as per Section 230 of the
       Act 1980, 50% of the municipal tax shall have to be paid by every
       tenant and as per Section 231 of the Act 1980 the same shall be
       recoverable as arrears of rent. [Paras 5.1 & 6][1020-C-D, G-H]
 E            2. As per Section 230 of the Act 1980, a person primarily
       liable to pay the property tax (lessor) in respect of any land or
       building may recover half of the amount of the property tax from
       the occupier (lessee/tenant) of the property. Section 231 of the
       Act 1980 provides that the person primarily liable to pay any
 F     property tax is entitled to recover the consolidated rate including
       surcharge from the occupier of the property and for that purpose
       the person primarily liable shall have the same rights and remedies
       as if such sum were ‘rent’ payable to him by the person from
       whom he is entitled to recover such sum. Section 5(8) of the Act
       1997 casts an obligation on the tenant to pay his share of municipal
 G     tax as an occupier of the premises in accordance with the
       provisions of the Act 1980. Merely because the obligation to pay
       half of the property tax and surcharge would be upon the tenant
       as per section 230 of the Act 1980 and the tenant is obliged to pay
       his share of municipal tax as an occupier of the premises under
 H
                EIH LIMITED v. NADIA A VIRJI                          1013


Section 5(8) of the Act 1997 and merely because for the purpose       A
of recovery of the tax due from the tenant, such tax apportioned
can be recovered as rent, such tax apportioned (half of the amount
of the property tax and surcharge) cannot become part of the rent
of the premises which is tenanted. For that purpose, the terms
and conditions mentioned in the tenancy agreement/lease
                                                                      B
agreement are required to be considered. For example, if in the
tenancy agreement if it is provided that the tenant shall pay ‘X’
amount which shall include the taxes, the tax component can be
said to be ‘part of the rent’. However, if under the agreement
and/or even under Section 230 of the Act 1980 r/w Section 5(8) of
the Act 1997, the tenant is liable to pay tax separately or half of   C
the amount of tax now statutorily liable to be paid, the same can
be recovered as arrears of rent because such ‘tax’ is to be treated
as ‘rent’ for the purpose of recovery. However, the same cannot
be said to be ‘part of the rent’. [Paras 7 & 8][1022-D-F; 1025-A-
D]
                                                                      D
       3. Now so far as reliance being placed upon Section 18 of
the Act 1997 and the submission that under Section 18 of the Act
1997 the rent shall be automatically increased by revision of 5%
every three years and therefore by giving the increase by revision
of 5% every three years, the rent payable would be more than
rupees ten thousand per month is concerned, the aforesaid             E
contention has no substance. Section 18 of the Act 1997 shall be
applicable in a case where the fair rent is determined and fixed by
the Controller under Section 17 of the Act 1997. That is not the
case here. Therefore, Section 18 of the Act 1997 is not applicable
at all to the facts and circumstances of the case. In view of the     F
above discussion and for the reasons stated above and as the
monthly rent due and payable would be Rs. 10,000/- per month
which cannot be said to be more than ten thousand rupees as
monthly rent, the High Court has rightly observed and held that
the Act 1997 shall be applicable and therefore the civil suit filed
by invoking Section 106 of the TP Act is impliedly barred.            G
Therefore, the High Court has rightly rejected the plaint in
exercise of powers under Order 7 Rule 11 CPC. No interference
of this Court is called for. Accordingly, the present appeals stand
dismissed. [Paras 10 & 11][1026-A-D]
                                                                      H
1014            SUPREME COURT REPORTS                          [2022] 6 S.C.R.


 A           Popat and Kotecha Property v. Ashim Kumar Dey (2018)
             9 SCC 149 : [2018] 9 SCR 518 – held inapplicable.
             Calcutta Gujarati Education Society v. Calcutta
             Municipal Corporation (2003) 10 SCC 533 : [2003] 2
             Suppl. SCR 915; Abdul Kader v. G.D. Govindaraj
 B           (Dead) By Lrs. (2002) 5 SCC 51 : [2002] 3
             SCR 460; Karnani Properties Limited v. Augustine
             (Miss) AIR 1957 SC 309 : [1957] 0 SCR 20 – referred
             to.
                               Case Law Reference
 C     [2003] 2 Suppl. SCR 915         referred to                Para 3.1
       [2018] 9 SCR 518                held inapplicable          Para 3.1
       [2002] 3 SCR 460                referred to                Para 3.5
       [1957] 0 SCR 20                 referred to                Para 3.5
 D
             CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4797-
       4799 of 2022.
             From the Judgment and Order dated 25.06.2019 of the High Court
       at Calcutta in A.P.D No. 265 of 2017 with G.A. No.1216 of 2016 with
       G.A. No.218 of 2013 in C.S. No.354 of 2012.
 E
             Rana Mukherjee, Sr. Adv., Ms. Kanchan Yadav, Ms. Surabhi
       Guleria for M/s Victor Moses & Associates, Advs. for the Appellant.
            Siddharth Dave, Sr. Adv., Ms. Ranjeeta Rohatgi, Ms. Samten
       Doma, Advs. for the Respondent.
 F           The Judgment of the Court was delivered by
             M. R. SHAH, J.
              1. Feeling aggrieved and dissatisfied with the impugned judgment
       and order dated 25.06.2019 passed by the Division Bench of the High
       Court at Calcutta in A.P.D. No. 265/2017 with G.A. No. 1216/2016 with
 G
       G.A. No. 218/2013 in Civil Suit No. 354/2012, by which the Division
       Bench of the High Court has dismissed the said appeal and has confirmed
       the order dated 22.03.2016 passed by the learned Single Judge allowing
       the application under Order 7 Rule 11 CPC rejecting the plaint on the
       ground that the suit before the learned Single Judge (original side) would
 H     not be maintainable as per the provisions of the West Bengal Premises
                   EIH LIMITED v. NADIA A VIRJI                                    1015
                          [M. R. SHAH, J.]

Tenancy Act, 1997 (hereinafter referred to as the ‘Act 1997’), the original        A
plaintiff – landlord has preferred the present appeals.
         2. The facts leading to the present appeals in a nutshell are as
under:
       That by a Tenancy Agreement dated 6.5.1993, the appellant –
original plaintiff – landlord inducted the respondent/defendant as tenant          B
in respect of a showroom admeasuring 1700 sq. ft. on the ground floor
of a prime location of Kolkata being the arcade of the Hotel Oberoi
Grand at Premises No. 15/2, Jawaharlal Nehru Road, Kolkata. Under
the Tenancy Agreement, the rent was fixed at Rs. 10,000/- per month.
Under the Tenancy Agreement, the liability to pay the taxes including              C
surcharge and water tax/fees was upon the respondent – tenant.
        2.1 The appellant – original plaintiff – landlord terminated the
tenancy by issuing notice under Section 106 of the Transfer of Property
Act, 1882 (hereinafter referred to as the ‘TP Act’). Upon expiry of the
notice period, the appellant – original plaintiff – landlord filed a suit before   D
the learned Single Judge (Original Side) of the Calcutta High Court being
Civil Suit No. 354/2012, seeking eviction of the respondent – tenant
from the tenanted premises. According to the appellant – original plaintiff,
as the liability to pay the tax payable to the Calcutta Municipal Corporation
was upon the respondent – tenant and in view of Section 5(8) of the Act
1997 r/w Section 3(f), the total rent payable by the tenant inclusive of           E
monthly rent and taxes would exceed the ceiling limit of Rs.10,000/- per
month specified in Section 3(f)(i) of the Act 1997 for commercial
premises, hence the Act 1997 is not applicable and therefore the original
plaintiff – landlord terminated the tenancy by issuing notice under Section
106 of the TP Act. The original plaintiff also prayed for the summary              F
judgment.
       2.2 The original defendant – tenant after appearing in the suit
filed an application before the learned Single Judge under Order 7 Rule
11 CPC for rejection of the plaint, inter alia, on the ground that the suit
was barred by reasons of the provisions of the Act 1997 being applicable           G
because the rent of the said premises was Rs. 10,000/- per month and
the tenancy being for commercial purpose is not exempted under Section
3(f)(i) of the Act 1997. The learned Single Judge allowed the said
application and rejected the plaint vide order dated 22.03.2016 by holding
that the rent payable by the tenant is Rs. 10,000/- per month which is
                                                                                   H
1016             SUPREME COURT REPORTS                            [2022] 6 S.C.R.


 A     below the ceiling limit mentioned in Section 3(f)(i) of the Act 1997 and
       therefore the Act 1997 is applicable and therefore the suit under Section
       106 of the TP Act is impliedly barred by the provisions of the Act 1997.
              2.3 Feeling aggrieved and dissatisfied with the order passed by
       the learned Single Judge in allowing the application under Order 7 Rule
 B     11 CPC and holding that the Act 1997 shall be applicable and therefore
       the suit under Section 106 of the TP Act is impliedly barred by the
       provisions of the Act 1997, the appellant – original plaintiff – landlord
       filed an appeal before the Division Bench of the High Court. By the
       impugned judgment and order, the Division Bench of the High Court has
       dismissed the said appeal, confirming the order passed by the learned
 C     Single Judge.
              2.4 Feeling aggrieved and dissatisfied with the impugned judgment
       and order passed by the Division Bench of the High Court and confirming
       the judgment and order passed by the learned Single Judge that as the
       rent payable by the tenant is Rs. 10,000/- per month (excluding the liability
 D     to pay the municipal taxes) and therefore the Act 1997 shall be applicable
       and therefore the suit under Section 106 of the TP Act would be impliedly
       barred, the original plaintiff – appellant – landlord has preferred the
       present appeals.
             3. Shri Rana Mukherjee, learned Senior Advocate has appeared
 E     on behalf of the original plaintiff – landlord and Shri Siddharth Dave,
       learned Senior Advocate has appeared on behalf of the respondent –
       defendant – tenant.
              3.1 Relying upon Sections 3, 5(8) of the Act 1997 r/w Section 230
       & 231 of the Kolkata Municipal Corporation Act, 1980 (hereinafter
 F     referred to as the ‘Act 1980’) and relying upon the decisions of this
       Court in the case of Calcutta Gujarati Education Society v. Calcutta
       Municipal Corporation, (2003) 10 SCC 533 (para 45) and the
       subsequent decision in the case of Popat and Kotecha Property v.
       Ashim Kumar Dey, (2018) 9 SCC 149, it is vehemently submitted by
 G     Shri Rana Mukherjee, learned Senior Advocate appearing on behalf of
       the original plaintiff – landlord that both, the learned Single Judge as well
       as the Division Bench of the High Court have committed a serious error
       in observing and holding that the Act 1997 shall be applicable.
             3.2 It is vehemently submitted that as per Section 5(8) of the Act
       1997, r/w Section 230 & 231 of the Act 1980 and as observed and held
 H
                   EIH LIMITED v. NADIA A VIRJI                                   1017
                          [M. R. SHAH, J.]

by this Court in the case of Calcutta Gujarati Education Society                  A
(supra), the expression ‘rent’ includes municipal tax payable to the
Corporation and in the present case the liability to pay the municipal tax
under the tenancy agreement is upon the tenant and even otherwise as
per Section 230 of the Act 1980, fifty per cent of the tax liability would
be upon the tenant and the same is statutorily to be paid and the same
                                                                                  B
can be recoverable as if it is a rent. That even under Section 5(8) of the
Act 1997, the arrears of tax is recoverable as if it is arrears of ‘rent’,
every tenant shall have to pay his share of municipal tax and the rent
includes the municipal tax element. It is submitted that therefore as the
tenant is required to pay more than ten thousand (rupees ten thousand
towards rent plus the municipal tax payable to the municipal corporation)         C
as per Section 3(f)(i) of the Act 1997, the Act 1997 shall not be applicable.
       3.3 Taking us to Section 45 of the Act 1997, it is submitted that the
Act 1997 shall be applicable even with respect to tenancy agreements
executed prior to the Act 1997 and when the tenancy agreements have
been executed at the time when the West Bengal Premises Tenancy                   D
Act, 1956 (hereinafter referred to as the ‘Act 1956’) was in force. It is
submitted that as per Section 45 of the Act 1997, all suits and other
proceedings under the Act 1956 pending at the commencement of the
Act 1997 are specifically saved, but not the tenancy agreements executed
prior to the Act 1997 and the Act 1997 shall be applicable to the
agreements executed at the time when the Act 1956 was in force. It is             E
submitted that as per Section 18 of the Act 1997, there shall be,
automatically, increase of rent by revision of five per cent every three
years. It is submitted that therefore the rent payable would be more than
Rs. 10,000/- per month (after considering the increase as per Section 18
of the Act 1997) and therefore also the Act 1997 shall not be applicable.         F
       3.4 Shri Rana Mukherjee, learned Senior Advocate appearing on
behalf of the original plaintiff – landlord has heavily relied upon the
decision of this Court in the case of Calcutta Gujarati Education
Society (supra), more particularly para 45, in support of his submission
that the rent payable by the tenant would include the taxes payable to            G
the municipal corporation payable by the tenant. Relying upon the aforesaid
decision, it is submitted that even the tax is a part of the rent and therefore
if the same is included the rent payable would be more than
Rs. 10,000/- and therefore Section 3(f)(i) of the Act 1997 would be
applicable and hence the Act 1997 shall not be applicable. It is submitted
                                                                                  H
1018             SUPREME COURT REPORTS                           [2022] 6 S.C.R.


 A     that the said decision has been subsequently followed by this Court in
       the case of Popat and Kotecha Property (supra). It is submitted that
       in the case of Popat and Kotecha Property (supra), even this Court
       has observed and held that for non-payment of tax due and payable by
       the tenant under Section 230 of the Act 1980 r/w Section 5(8) of the Act
       1997 and as the tax can be said to be rent and even the eviction decree
 B
       can be passed for non-payment of tax.
             3.5 Shri Rana Mukherjee, learned Senior Advocate has also relied
       upon another decision of this Court in the case of Abdul Kader v. G.D.
       Govindaraj (Dead) By Lrs., (2002) 5 SCC 51 and has submitted that
       as observed and held by this Court, after considering the decision of this
 C     Court in the case of Karnani Properties Limited v. Augustine (Miss),
       AIR 1957 SC 309 that in the event of taxes having been agreed to be
       paid by the tenant, the same forms part of the rent.
              3.6 Making the above submissions and relying upon the aforesaid
       decisions, it is prayed to allow the present appeal and quash and set
 D     aside the orders passed by the learned Single Judge and Division Bench
       of the High Court taking the view that the Act 1997 shall be applicable.
               4. While opposing the present appeal, Shri Siddharth Dave, learned
       Senior Advocate appearing on behalf of the respondent – tenant has
       vehemently submitted that in the present case as per the tenancy
 E     agreement, the rent due and payable by the tenant would be
       Rs.10,000/- per month. It is submitted that, may be, as per Section 230
       of the Act 1980 and/or even as per Section 5(8) of the Act 1997, fifty
       per cent of the tax liability would be upon the tenant and on non-payment
       of the same the landlord can recover the tax liability as arrears of rent as
 F     per Section 231 of the Act 1980, but the amount of tax due and payable
       under Section 230 of the Act 1980 r/w Section 5(8) of the Act 1997
       cannot be said to be rent as sought to be canvassed on behalf of the
       landlord. It is submitted that even as per the judgment of this Court in the
       case of Calcutta Gujarati Education Society (supra) what is observed
       is the mode of recovery of the taxes due as arrears of rent. He has also
 G     relied upon para 46 of the said judgment in the case of Calcutta Gujarati
       Education Society (supra). It is contended that therefore the decision
       of this Court in the case of Calcutta Gujarati Education Society (supra)
       cannot be construed to hold that the tax amount can be said to be a rent.
       It is submitted that the term “rent” is not defined. It is submitted that
 H     both the components, namely, the rent and the tax are different and
                  EIH LIMITED v. NADIA A VIRJI                                 1019
                         [M. R. SHAH, J.]

distinct. That the tax amount due and payable by the tenant cannot be          A
termed as “rent”. However, the tax due and payable by the tenant can
be recovered as arrears of rent, but the same cannot be termed as “rent”.
It is submitted that therefore in the present case as the rent due and
payable is Rs. 10,000/- per month and the premises is a commercial
premises, Section 3(f)(i) of the Act 1997 shall not be applicable and the
                                                                               B
Act 1997 shall be applicable.
      4.1 It is further submitted that in the present case, it is not only a
question of jurisdiction of the Court to entertain the suit under Section
106 of the TP Act, but the question is with respect to protection which
may be available to the tenant under the provisions of the Act 1997. It is
urged that under the Act 1997, the landlord can recover the possession         C
and evict the tenant on very limited grounds and the protection under the
Act 1997 shall not be available to the tenant in a suit for eviction under
Section 106 of the TP Act.
        4.2 Now so far as the reliance placed upon the decision of this
Court in the case of Popat and Kotecha Property (supra), relied upon           D
by the learned counsel appearing on behalf of the landlord is concerned,
it is submitted that in the said decision, para 46 of the judgment in the
case of Calcutta Gujarati Education Society (supra) has not been
noticed. Learned counsel has also taken us to the objects and reasons
for amendment in Section 230 of the Act 1980 and insertion of Section          E
5(8) of the Act 1997, by which, the liability to pay the municipal tax
payable to the Corporation (to the extent of 50% of the tax liability) now
would be on the tenant and therefore the same is held to be recoverable
as arrears of rent. It is submitted that being a private person, it was not
possible for the landlord to file a suit for recovery of the tax from the
tenant (prior to amending Section 230 of the Act 1980) and in many             F
cases it was observed that the tax liability would be more than the rent
to be paid by the tenant and therefore Section 230 of the Act 1980 came
to be amended under which now 50% of the tax liability would be upon
the tenant and as there was no machinery for recovery available to the
landlord, Section 5(8) of the Act 1997 has been inserted, under which,         G
the landlord is under an obligation to pay his share of municipal tax and
as observed and held by this Court in Calcutta Gujarati Education
Society (supra) the same is recoverable as arrears of rent from the
tenant. It is submitted that under Section 231 of the Act 1980 r/w Section
5(8) of the Act 1997, it is only the mode of recovery of tax due and
                                                                               H
1020             SUPREME COURT REPORTS                            [2022] 6 S.C.R.


 A     payable by the tenant as arrears of rent and by no stretch of imagination
       tax due and payable by the tenant/tax liability can be said to be a rent
       and/or part of the rent unless specifically agreed to by the parties by
       means of a contract.
             4.3 Making the above submissions and relying upon the aforesaid
 B     decisions, it is prayed to dismiss the present appeals.
             5. We have heard learned counsel for the landlord as well as the
       tenant at great length.
              5.1 The short question which is posed for the consideration of this
       Court is, “whether, share of municipal tax due and payable by the tenant
 C     under Section 230 of the Act 1980 and Section 5(8) of the Act 1997 shall
       be included within the expression ‘rent’ or in other words, the share of
       municipal tax due and payable by the tenant can be said to be a part of
       the rent of the premises let out?”
              5.2 At the outset, it is required to be noted that in the present case,
 D     under the tenancy agreement under consideration the rent payable by
       the tenant would be Rs. 10,000/- per month. Over and above the rent,
       the tenant has also agreed to pay the municipal taxes payable to the
       Calcutta Municipal Corporation. However, it is required to be noted that
       the tenancy agreement does not provide that the parties have agreed
 E     that the rent would be inclusive of municipal taxes payable and that as
       and when such taxes are enhanced, rent would be proportionately raised.
       Under the tenancy agreement, the rent payable would be Rs. 10,000/-
       per month and the liability to pay municipal taxes is separate and distinct
       on the tenant. On a fair reading of Section 3(f) of the Act 1997, which
       provides that any premises let out for non-residential purpose, which
 F     carries more than ten thousand rupees as monthly rent, nothing contained
       in the West Bengal Premises Tenancy Act, 1997 shall apply. The word
       used is “monthly rent”. As observed hereinabove, the term “rent” is not
       defined.
              6. It is the case on behalf of the landlord that as under Section
 G     5(8) of the Act 1997, every tenant is under an obligation to pay his share
       of municipal tax as an occupier of the premises in accordance with the
       provisions of the Kolkata Municipal Corporation Act, 1980 and as per
       Section 230 of the Act 1980, 50% of the municipal tax shall have to be
       paid by every tenant and as per Section 231 of the Act 1980 the same
       shall be recoverable as arrears of rent and as per the decision of this
 H
                  EIH LIMITED v. NADIA A VIRJI                               1021
                         [M. R. SHAH, J.]

Court in the case of Calcutta Gujarati Education Society (supra) the         A
arrears of municipal tax can be recovered as arrears of rent and therefore
the share of municipal tax payable by the tenant will be part of the rent.
Heavy reliance is placed on para 45 in the case of Calcutta Gujarati
Education Society (supra) and the subsequent decision in the case of
Popat and Kotecha Property (supra).
                                                                             B
       7. While considering the issue on hand, namely, whether the share
of the municipal tax payable by the tenant in accordance with the
provisions of Sections 230 & 231 of the Act 1980 r/w Section 5(8) of the
Act 1997 can be said to be a part of the rent for the purpose of Section
3(f) of the Act 1997, Sections 230 & 231 of the Act 1980 and Section
5(8) of the Act 1997 are required to be referred to, which are as under:     C

      “Section 230 : Apportionment of property tax by the person
      primarily liable to pay.
      Save as otherwise provided in this Act, the person primarily liable
      to pay the property tax in respect of any land or building may         D
      recover –
          (a) If there be but one occupier of the land or building, from
              such occupier half of the rate so paid, and may, if there be
              more than one occupier, recover from each occupier half
              of such sum as bears to the entire amount of rate so paid      E
              by the owner the same proportion as the value of the
              portion of the land or building in the occupation of such
              occupier bears to the entire value of such land or building:
      Provided that if there be more than one occupier, such half of the
      amount may be apportioned and recovered from each occupier in          F
      such proportion as the annual value of the portion occupied by
      him bears to the total annual value of such land or building;
          (b) the entire amount of the surcharge on the property tax on
              any land or building from the occupier of such land or
              building who uses it for commercial or non-residential
                                                                             G
              purposes
      Provided that if there is more than one such occupier, the amount
      of surcharge on the property tax may be apportioned and
      recovered from each such occupier in such proportion as the annual
      value of the portion occupied by him bears to the total annual
      value of such land or building.                                        H
1022             SUPREME COURT REPORTS                           [2022] 6 S.C.R.


 A           Section 231: Mode of recovery: If any person primarily liable to
             pay any property tax on any land or building and is entitled to
             recover any sum from an occupier of such land or building, he
             shall have, for recovery thereof, the same rights and remedy as if
             such sum were rent payable to him by the person from whom he
             is entitled to recover such sum.
 B
             Section 5(8) of the West Bengal Premises Tenancy Act 1997:
             (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)
 C           or the West Bengal Municipal Act, 1993 (West Bengal Act XXII
             of 1993).
             Explanation – For the purposes of this sub-section, the term
             ‘occupier’ means an occupier as defined in clause (6)) of section
             2 of the Kolkata Municipal Corporation Act, 1980 or clause (43)
 D           of section 2 of the West Bengal Municipal Act, 1993.”
              As per Section 230 of the Act 1980, a person primarily liable to
       pay the property tax (lessor) in respect of any land or building may
       recover half of the amount of the property tax from the occupier (lessee/
       tenant) of the property. Section 231 of the Act 1980 provides that the
 E     person primarily liable to pay any property tax is entitled to recover the
       consolidated rate including surcharge from the occupier of the property
       and for that purpose the person primarily liable shall have the same
       rights and remedies as if such sum were ‘rent’ payable to him by the
       person from whom he is entitled to recover such sum. Section 5(8) of
       the Act 1997 casts an obligation on the tenant to pay his share of municipal
 F     tax as an occupier of the premises in accordance with the provisions of
       the Act 1980.
             8. Sections 230 & 231 of the Act 1980 fell for consideration before
       this Court in the case of Calcutta Gujarati Education Society (supra).
       Before this Court, the validity of the aforesaid two provisions of the Act
 G     1980 were under challenge. This Court had an occasion to consider the
       object and purpose of Section 231 of the Act 1980 in para 45, which
       reads as under:
             “45. We find that the machinery provisions for assessment and
             recovery of tax basically involve the owner or the lessor who is
 H           “primarily liable” for the tax on property although in the course of
           EIH LIMITED v. NADIA A VIRJI                                 1023
                  [M. R. SHAH, J.]

assessment and recovery of portion of tax from the tenants, sub-        A
tenants or occupants, their involvement is also directed. It is with
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
                                                                        B
from the tenant, sub-tenant or the occupant. If the landlord or the
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
occupant who is actually enjoying the property and putting it to        C
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
                                                                        D
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
tax burden between owner or the lessor as one party and the             E
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 by the tenant or sub-tenant,
                                                                        F
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 would be recoverable as such. The word “rent” has not been
defined in the tenancy law and this Court has taken note of this        G
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 money with service charges
for water, electricity and other taxes leviable on the tenanted
premises.”                                                              H
1024            SUPREME COURT REPORTS                           [2022] 6 S.C.R.


 A           That thereafter, in paragraph 46, it is observed and held as under:
             “46. The provisions of the Tenancy Act merely enable the landlord
             to make a demand of arrears of rent and in default of the payment
             of the same, sue the tenant for recovery of rent or eviction on the
             ground of non-payment of rent despite demand. The tenant can
 B           get protection against eviction on the ground of arrears of rent
             only if he makes requisite deposit of the arrears in the manner laid
             down in the provisions of the Tenancy Act. A provision to
             fictionally treat “tax” as “rent” is necessitated because in the
             absence of such a fiction in Section 231 of the Act, the landlord
             would be compelled to pay the whole amount of tax which is
 C           recoverable from him under the Act and would be left to an
             expensive and cumbersome remedy of filing a civil suit for recovery
             of such tax paid on behalf of the tenant, sub-tenant or occupant.
             Such a fiction is required to be incorporated under Section 231 of
             the Act because a private party cannot recover tax. If a lessor is
 D           obliged to pay a portion of tax leviable on the tenant, the landlord
             can recover the same not as “tax” but only as part of “rent”. The
             fiction created by the legislation in Section 231 to treat “tax” as
             “rent” has to be taken to its logical conclusion. The Act under
             consideration and the Tenancy Act, both are State legislations.
             No question arises of legislative incompetence. There does not
 E           appear any inter se conflict between the two Acts. Both have to
             be read and applied harmoniously to achieve the legislative intent
             in the two enactments. The contention based on Section 231 of
             the Act, therefore, also does not commend to us and is rejected.”
               Thus, as observed and held by this Court in the case of Calcutta
 F     Gujarati Education Society (supra), the amount of tax due and payable
       by the tenant under Section 230 of the Act 1980 r/w Section 5(8) of the
       Act 1997 can be recovered as arrears of rent (Section 231 of the Act
       1980) and for that purpose, namely, for the purpose of recovery the tax
       apportioned on the tenant would be treated as ‘rent’ and would be
 G     recoverable as such. The aforesaid judgment cannot be read holding
       that the tax apportioned on the tenant be treated as ‘part of the rent’, as
       contended by Shri Rana Mukherjee, learned Senior Advocate appearing
       on behalf of the landlord. Merely because the obligation to pay half of
       the property tax and surcharge would be upon the tenant as per section
       230 of the Act 1980 and the tenant is obliged to pay his share of municipal
 H
                   EIH LIMITED v. NADIA A VIRJI                                   1025
                          [M. R. SHAH, J.]

tax as an occupier of the premises under Section 5(8) of the Act 1997             A
and merely because for the purpose of recovery of the tax due from the
tenant, such tax apportioned can be recovered as rent, such tax
apportioned (half of the amount of the property tax and surcharge) cannot
become part of the rent of the premises which is tenanted. For that
purpose, the terms and conditions mentioned in the tenancy agreement/
                                                                                  B
lease agreement are required to be considered. For example, if in the
tenancy agreement if it is provided that the tenant shall pay ‘X’ amount
which shall include the taxes, the tax component can be said to be ‘part
of the rent’. However, if under the agreement and/or even under Section
230 of the Act 1980 r/w Section 5(8) of the Act 1997, the tenant is liable
to pay tax separately or half of the amount of tax now statutorily liable to      C
be paid, the same can be recovered as arrears of rent because such
‘tax’ is to be treated as ‘rent’ for the purpose of recovery. However, the
same cannot be said to be ‘part of the rent’. Therefore, reliance placed
upon the decision of this Court in the case of Calcutta Gujarati
Education Society (supra) by learned counsel appearing on behalf of
                                                                                  D
the landlord is on a misreading of the said decision. As observed
hereinabove, the said decision cannot be read to mean that the tax
apportioned can be said to be part of the rent as sought to be contended
by Shri Rana Mukherjee, learned Senior Advocate appearing on behalf
of the landlord.
       9. Now so far as reliance being placed upon the subsequent decision        E
of this Court in the case of Popat and Kotecha Property (supra) is
concerned, at the outset, it is required to be noted that in the said decision,
para 45 of the decision in the case of Calcutta Gujarati Education
Society (supra) has been considered and not para 46, reproduced
hereinabove. Even on facts, the said decision is not applicable. In the           F
said decision, under the agreement the parties agreed that the rent would
include all municipal taxes payable and that as and when such taxes are
enhanced rent should be proportionately raised. In the present case,
under the tenancy agreement, the rent payable would be Rs. 10,000/-
per month which does not include the municipal taxes payable. The liability
to pay the taxes under the agreement would be over and above the                  G
amount of rent, i.e., Rs. 10,000/- per month. Therefore, on facts, the
decision of this Court in the case of Popat and Kotecha Property
(supra) is not applicable to the facts of the case on hand.
      10. Now so far as reliance being placed upon Section 18 of the
Act 1997 and the submission that under Section 18 of the Act 1997 the             H
1026                SUPREME COURT REPORTS                       [2022] 6 S.C.R.


 A     rent shall be automatically increased by revision of 5% every three years
       and therefore by giving the increase by revision of 5% every three years,
       the rent payable would be more than rupees ten thousand per month is
       concerned, the aforesaid contention has no substance. Section 18 of the
       Act 1997 shall be applicable in a case where the fair rent is determined
       and fixed by the Controller under Section 17 of the Act 1997. That is not
 B
       the case here. Therefore, Section 18 of the Act 1997 is not applicable at
       all to the facts and circumstances of the case.
              11. In view of the above discussion and for the reasons stated
       above and as the monthly rent due and payable would be
       Rs. 10,000/- per month which cannot be said to be more than ten thousand
 C     rupees as monthly rent, the High Court has rightly observed and held
       that the Act 1997 shall be applicable and therefore the civil suit filed by
       invoking Section 106 of the TP Act is impliedly barred. Therefore, the
       High Court has rightly rejected the plaint in exercise of powers under
       Order 7 Rule 11 CPC. No interference of this Court is called for.
 D     Accordingly, the present appeals stand dismissed.
             However, in the facts and circumstances of the case, there shall
       be no order as to costs.


       Ankit Gyan                                                 Appeals dismissed.
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