While deciding CIVIL APPEAL NO. 4422 OF 2011 [Mohammad Ahmad & Anr Versus Atma Ram Chauhan & Ors.] the honourable Supreme Court of India has fixed some guidelines, some of which run directly in conflict with the provisions of Rent legislations in force in the country.
As per the guidelines fixed by the honourable Apex Court, henceforth, payment of tax would be the liability of the tenant. Most of the rent legislations provide that, the said liability is of the landlords. The honourable Supreme Court has also issued guidelines for fixation of standard rents.
These guidelines, if considered against the statutory provisions, process of adjudication as to whether a tenant is a defaulter or not has become more complicated as the deductions made by the tenants towards payment of taxes would be treated as arrears of rent, contrary to the provisions of respective statutes. Whether a decree of eviction can be passed by assessing the rent payable contrary to the statutory provisions would be a debatable issue. Five years absolute immunity granted to a tenant paying rent at market rate would render all other grounds of eviction like bonafide requirement, nuisance, etc. as redundant.
Vote bank oriented approach of the legislators has lead to continuation of illogical and unjust protections to some classes. However, question remains, whether that can be a reason to allow the judiciary to legislate?
The guidelines fixed by the honourable Supreme Court are,
21. According to our considered view majority of these cases are filed because landlords do not get reasonable rent akin to market rent, then on one ground or the other litigation is initiated. So before saying omega, we deem it our duty and obligation to fix some guidelines and norms for such type of litigation, so as to minimise landlord-tenant litigation at all levels.
These are as follows:-
(i) The tenant must enhance the rent according to the terms of the agreement or at least by ten percent, after every three years and enhanced rent should then be made payable to the landlord. If the rent is too low (in comparison to market rent), having been fixed almost 20 to 25 years back then the present market rate should be worked out either on the basis of valuation report or reliable estimates of building rentals in the surrounding areas, let out on rent recently.
(ii) Apart from the rental, property tax, water tax, maintenance charges, electricity charges for the actual consumption of the tenanted premises and for common area shall be payable by the tenant only so that the landlord gets the actual rent out of which nothing would be deductible. In case there is enhancement in property tax, water tax or maintenance charges, electricity charges then the same shall also be borne by the tenant only.
(iii) The usual maintenance of the premises, except major repairs would be carried out by the tenant only and the same would not be reimbursable by the landlord.
(iv) But if any major repairs are required to be carried out then in that case only after obtaining permission from the landlord in writing, the same shall be carried out and modalities with regard
to adjustment of the amount spent thereon, would have to be worked out between the parties.
(v) If present and prevalent market rent assessed and fixed between the parties is paid by the tenant then landlord shall not be entitled to bring any action for his eviction against such a tenant at least for a period of 5 years. Thus for a period of 5 years the tenant shall enjoy immunity from being evicted from the premises.
(vi) The parties shall be at liberty to get the rental fixed by the official valuer or by any other agency, having expertise in the matter.
(vii) The rent so fixed should be just, proper and adequate, keeping in mind, location, type of construction, accessibility with the main road, parking space facilities available therein etc. Care ought to be taken that it does not end up being a bonanza for the landlord.
22. These are some of the illustrative guidelines and norms but not exhaustive, which can be worked out between landlord and tenant so as to avoid unnecessary litigation in Court.
VAKILSAHEB OPINES
The judiciary has authority to examine constitutional validity of legislation. Please declare the illogical, irrational and un-prudent legislations as unconstitutional by applying the test of existence of rational nexus with the object to be achieved.
VAKILSAHEB
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