Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: In a writ petition filed under Article 227 of the Constitution of India, after being aggrieved by the order passed by Chhattisgarh Rent Control Tribunal (Tribunal), wherein the Tribunal has affirmed the order dated 13.02.2020 passed by the Rent Controlling Authority, Raipur (Authority), the division bench of P. Sam Koshy and Parth Prateem Sahu, JJ. has held that the open land which is not being used for agriculture purpose and has been given on lease for a particular period comes under the definition of ‘Accommodation’ under Section 2(i)(1) of Chhattisgarh Accommodation Control Act, 2011 (the Act of 2011).

In this case, the respondent leased out a portion of the property in favour of the petitioner and the lease/rent was executed for a period of 15 years. Thereafter, a fresh rent agreement was entered into for the period of 10 years. After the expiry of the lease in 2018, the respondent issued a notice of eviction under Section 12(2) read with Schedule-II Clause 11(h) of the Act of 2011. Despite the said notice, the petitioner did not evict the premises, thus, the respondent filed an application before the Authority seeking an order of eviction. The Authority has directed the petitioner to immediately vacate the said premises within a period of one month. Further, aggrieved by the said order the petitioner filed an appeal before the Tribunal, however, the Tribunal also has affirmed the order passed by the Authority. It is this order which is under challenge in the present writ petition.

The Court noted that the writ petition has been filed on three grounds:

  • Since the agreement entered between the parties was not an agreement in consonance with the requirement as laid down under the Act of 2011, the provisions of the Act of 2011 would not be applicable.
  • The provisions of the Act of 2011 also would not be attractive in the present case as it was only land which was leased out for rent by the respondent and the Act will only be applicable upon an accommodation/building and the land attached to the accommodation of the building.
  • The Indian Oil Corporation, of which the petitioner was a dealer, was a necessary party, and in the absence of the Corporation being made a party before the authorities the two proceedings deserve to be rejected on the ground of non-joinder of necessary party.

The Court concerning the first ground, observed that the said issue is no longer res integra in the light of a recent decision of the Division Bench of this Court in the case of Shrawan Kumar Saraf v. Ravikant Mishra WPC No.650 of 2020, wherein the Court held that “non adherence of the Chhattisgarh Rent Control Act, 2011 or for that matter the agreement between the parties not being in accordance with the Act would not debar under law to pursue his application before the Rent Controlling Authority”.

Further, the Court referred to the English and even Hindi version of the definition of an ‘Accommodation’ under Section 2(i) of the Act of 2011 that states, an accommodation “means any building or part of a building, whether residential or non-residential, leased out by the landlord to the tenant and includes open space, staircase, grounds, garden, garage and all facilities and amenities forming part of the agreement between them of any land which is not being used for agricultural purposes.” and observed that “a plain reading of the definition of an “accommodation”, more particularly the one in Hindi, would clearly reflect that the definition of accommodation is inclusive of any land which is not being used for any agricultural work”.

Thus, the Court viewed that, for the purpose of attracting the Act of 2011, all that is required is the lease deed executed in writing between the landlord and the tenant in respect of any building or a part of a building whether for residential or non-residential purpose and would also include any land which is not being used for agriculture purpose.

Moreover, the Court observed that another fact which needs to be appreciated at this juncture is that the earlier law governing the field i.e., the Chhattisgarh Accommodation Control Act, 1961 (the Act of 1961) also had the same definition of accommodation under Section 2(a) of the Act of 1961. Thus, the Court held that the provisions of the Act, 2011 would also be applicable upon the property taken on rent or lease, even if it is open land.

Further, concerning the third issue, the Court viewed that the rent agreement or lease deed was executed between respondent and petitioner, and Indian Oil Corporation was not involved at any point of time. Further, the proceedings having been initiated under Section 12(2) read with Clause 11(h) of Schedule-II, the application could have been filed only between the petitioner and the respondent and the dealership agreement entered between the petitioner and the Indian Oil Corporation would not be of much relevance when it comes to a lease/ rent agreement entered between the petitioner and the respondent. Thus, the dispute is between the petitioner and the respondent who are the tenant and the landlord.

Moreover, the Court observed that the lease between the petitioner and the respondent came to an end w.e.f. 04.04.2018. Thereafter, there has been neither any renewal of the lease/rent agreement nor any fresh agreement was entered between the parties. Thus, there is no further right available with the petitioner to assert any claim over the said property, coupled with the fact that notice of eviction has already been issued by the respondent, and directed the petitioner to vacate the premises and hand over possession to the respondent within a period of four months.

[Sourabh Fuels v. Suresh Kumar Goyal, 2022 SCC OnLine Chh 1634, decided on 16.09.2022]


Advocates who appeared in this case :

For Petitioner: Advocate Sabyasachi Bhaduri;

For Respondent: Advocate Pranjal Agrawal;

Advocate Vidhi Agrawal.

AAR
Advance RulingsCase Briefs

Rajasthan Appellate Authority for Advance Ruling: The Bench of Pramod Kumar Singh, Member (Central Tax) and Ravi Jain, Member (State Tax) while addressing a matter held that hostel seat should be considered as a unit of accommodation.

Factual Background

Appellant had filed an appeal against the ruling issued by Authority for Advance Ruling Rajasthan.

Appellant was registered as a Public Charitable Trust under Section 12AA of the Income Tax Act, 1961. It was stated that the appellant was also the sponsoring body of Mody University of Science and Technology (MUST).

Further, it was added that the appellant was considering a proposal to allow the students of MUST to use the ‘Hostel Accommodation’ in its surplus infrastructure which includes Hostel Seat for the students along with serving meals including breakfast, lunch and dinner.

The ‘Boarding and Lodging Charges’ will directly be charged from the students and shall be based on the type of the ‘HOSTEL SEAT’ opted by the students.

The application was filed before the Rajasthan Authority for Advance Ruling to seek an Advance Ruling on the following:

Whether Hostel facility which includes Lodging and Boarding service provided by appellant to the students of MUST having value service upto Rs 1000 per day would be eligible for exemption under entry 14 of the notification 12/2017 CTR Dt. 28-06-2017?

Rajasthan Authority for Advance Ruling held that the applicant would not be eligible for exemption under entry no 14 of the Notification No. 12/2017 Central Tax (Rate), dated 28-6-2017.

Aggrieved with the above, the present appeal was filed.

Analysis and Decision

Rajasthan Appellate Authority for Advance Ruling expressed that, the Hostel Accommodation Service is at par with the “Service by a hotel, Inn, guest house, club or campsite, by whatever name called, for residential or lodging purpose” which falls under Service Accounting Code – 9963.

The Bench noted that as per Section 2(74) of the CGST Act the term “mixed supply” means two or more individual supplies of goods or services, or any combination made in conjunction with each other day by a taxable person for a single price where such supply does not constitute a composite supply.

In the present matter, the Authority observed that the appellant was supplying services of food along with Hostel Accommodation service.

“The supply of food with Hostel Accommodation service is not naturally bundled in normal course of business.”

Authority added that, a person can live in the hostel without availing other services like food but to make ones stay more comfortable, the said ancillary services are availed him.

Bench found that other services being provided by the appellant were not naturally bundled or ancillary to Hostel service as the inhabitants of Hostel seats can avail the said services from any other source. In fact, the inhabitants have been restricted from sourcing these other services from any other person and have to avail the same from the appellant.

“…supply of hostel accommodation along with food is not a composite supply but it is a mixed supply.”

As per Section 8 (b) of the CGST Act, 2017 in case of the mixed supply of accommodation and food, the highest rate of both will be applicable.

In view of the above, the appeal was disposed of. [Mody Education Foundation, In Re., RAJ/AAAR/01/2021-22, decided on 27-10-2021]

Case BriefsSupreme Court

Supreme Court: The bench of Justice Hemant Gupta* and AS Bopanna, JJ has held that Kashmiri migrants, who were once Government employees, cannot retain Government accommodation for indefinite period on the ground that “they would return to the Valley when the situation will improve”.

The Court was deciding the case of where some Kashmiri migrants had occupied Government accommodation in Delhi and in National Capital Region on the strength of an order passed by the Delhi High Court in a judgment reported as Union of India v. Vijay Mam, 2012 SCC OnLine Del 3218, pursuant to which a rehabilitation scheme was framed by the Central Government on 28.3.2017 as modified on 19.5.2017.

The Court, however, noticed that since the Office Memorandum issued on 28.3.2017 was in terms of the order of the High Court of Delhi, which has not been approved by the Supreme Court vide order dated 5.8.2021, the entire basis of issuance of Office Memorandum falls flat as the very foundation of such Scheme stands knocked down.

It was held that the Office Memorandum allowing government accommodation to the retired Government employees who are Kashmiri Migrants did not meet the touchstone of Article 14 of the Constitution of India.

“The Government houses/flats are meant for serving Government employees. Post retirement, the government employees including Kashmiri Migrants are granted pensionary benefits including monthly pension. The classification made in favour of Government employees who were Kashmiri Migrants stands on the same footing as that of other Government employees or public figures. There cannot be any justification on the basis of social or economic criteria to allow the Kashmiri Migrants to stay in Government accommodation for indefinite long period.”

Noticing that the compassion shown to Kashmiri Migrants has to be balanced with the expectations of the serving officers to discharge their duties effectively, bench said that the applicants are occupying the government accommodation at the cost of other Government servants who are waiting in queue for allotment of a government accommodation to discharge their official duties. The Government accommodation is meant for serving officers and cannot be taken as a recourse to stay in Government accommodation for the life time of the Government servants or his/her spouse.

“To say that they would return to the Valley when the situation will improve is an open-ended statement capable of being interpreted in different ways. The satisfaction of improvement of situation would be widely different by the erstwhile Government employees and the State. But in no case it can be countenanced that the former Government employee, may be a Kashmiri Migrant, is entitled to stay in a government accommodation for an indefinite period. Thus, we are unable to uphold the Office Memorandum and strike it down as being totally arbitrary and discriminatory.”

The Court went on to explain that in Para 2(ii) of the Scheme, Kashmiri Pandits were to be accommodated in Delhi for first five years starting from the date of their retirement and thereafter be shifted to National Capital Region. Hence, it would be reasonable if

  • Kashmiri Migrants are allowed government accommodation for a period of three years from the date of retirement so as to make alternative arrangements within such period.
  • If an alternative accommodation is not available for them at their instance, they are at liberty to move to the transit accommodation or to avail cash amount in lieu of transit accommodation.

“Thus, a government employee who is a Kashmiri Migrant would not be entitled to retain Government  accommodation for a period exceeding three years, may be in Delhi or in the National Capital Region or for that matter anywhere in the country.”

The Court further held that the three-years period can also be considered as cooling off period for the officers who were in active intelligence work so that they can resume normal life but the excuse of once working for intelligence agency is not a valid ground to occupy the Government accommodation for indefinite period.

[Omkar Nath Dhar v. Union of India, MISCELLANEOUS APPLICATION NO. 1468 OF 2021, decided on 07.10.2021]

____________________________________________________________________

Counsels:

For applicants: Senior Advocate Bimal Roy Jad

For UOI: Madhavi Divan, Additional Solicitor General


*Judgment by: Justice Hemant Gupta

Know Thy Judge| Justice Hemant Gupta

Case BriefsCOVID 19High Courts

Madras High Court: A Division Bench of M. Sathyanarayanan and Dr Anita Sumanth, JJ. asked for a comprehensive report to be submitted since the accommodation and transportation of the migrant workers stranded in the State of Tamil Nadu is looming at large.

Counsel for the petitioner submitted that Standard Operating Procedures (SOPs) in the form of various administrative instructions have been issued with relating to migrant workers/Labourers.

It has been submitted that, some of the migrant workers do not have authenticated cards on the form of Aadhar Cards, etc. and NGOs are trying their level best to coordinate with Governmental Agencies for registration and transportation but still there are some problems thus the same needs to be addressed and emergent directions needs to be passed.

Government Pleader, V. Jayaprakash Narayan submitted that comprehensive guidelines have been placed based upon MHA Order wherein the following was stated:

Inter-State movement of migrant workers, pilgrims, tourists, students and other persons stranded at different places due to lockdown and said Order mandated State Governments to designate Nodal officers to have coordination with respective State/UTs Governments to ensure orderly receiving and sending of stranded people between State of Tamil Nadu and other State/UTs as per SOPs issues.

Court while hearing the arguments placed a specific query with regard to identification of shelter homes/places wherein migrant workers were waiting for transportation to their Home States could be accommodated .

Court also took judicial notice of the fact that in arterial roads, migrant workers were exhibiting their anxiety to reach Railway Station and were not maintaining the social/physical distancing and do not possess sufficient protective masks and thus State’s immediate concern should be to accommodate them i shelter homes.

Assistant Solicitor General of India, G. Rajagopalan submitted that Ministry of Railways operated number of ‘Shramik’ Special Trains to transport migrant workers and though some of the States are not permitting the entry of migrant workers, State Government concerned needs to coordinate with the State Governments.

Court asked for a comprehensive Status Report to be filed with regard keeping in view the accommodation and transportation of migrant workers stranded in State of Tamil Nadu and the effective measures/workable solutions in terms of SOPs formulated.

The NGOs shall also coordinated with the migrant workers as their orderly behaviour and render necessary help to board trains. [S. Thilakraj v. Union of India, WP  No.7702 of 2020, decided on 19-05-2020]

Case BriefsCOVID 19High Courts

Delhi High Court: A Division Bench of Sanjeev Sachdeva and Navin Chawla, JJ. addressed the matter with regard to the issues being faced by the Delhi Riot victims.

The present hearing has been conducted through video conferencing.

Senior Advocate, Colin Gonsalves contended that Delhi Riot Victims have been facing several issues, he stated that the victims were staying at Idgah Camp but the Government has cleared the camp due to which they had to relocate themselves. In view of the lockdown they are facing several issues with regard to medical and food.

Standing Counsel for GNCTD, Rahul Mehra states that the camp has been removed as the victims voluntarily left camp and were not removed by police or government.

He added to his submission that, in view the present situation and also the directions with regard to lockdown issued by the Central Government, the officers shall get in touch with the representatives of each of the 275 families, whose names and telephone numbers have been provided and will further ascertain whether any assistance with regard to food, medical help etc. is required by them.

The families will be provided with the Nodal officers details for any kind of assistance during an emergent situation. In case any of the families require accommodation, efforts shall be made to immediately place them in appropriate accommodation/relief camps.

Senior Advocate, Colin Gonsalves further submits that there is an apprehension with regard to shifting them to the existing night shelters in and around their respective localities.

Standing Counsel for East Delhi Municipal Corporation submit that authorities shall coordinate between themselves and ensure that such families are not accommodated in the existing night shelters.

List for directions/reporting compliance on 03.04.2020 [Shaikh Mujtaba Farooq v. Union of India,  2020 SCC OnLine Del 49, decided on 30-03-2020]

Also Read:

COVID-19 | Del HC | Delhi riot victims who may be shelterless to be provided accommodation and basic amenities

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of the United States:  This appeal was filed before the Bench of Breyer, J.

The case involved two defendants who were convicted in the Federal Court for unlawful possession of firearms which was violative of § 922(g)(1) of The Armed Career Criminal Act. Each offender had State burglary convictions which could potentially expose them to a mandatory prison term of 15 years. The offenders should have at least three convictions of ‘violent felonies’ which includes ‘burglary’ as per §924(a)(1).

The issue that arose was whether the burglary of a non-permanent or mobile structure that is used for overnight accommodation qualifies as ‘burglary’ in the said Act. The Federal Court vacated the sentence of the offenders and hence an appeal was filed before the Supreme Court. The Court adjudged that the statutory term ‘burglary’ does indeed include structures used for overnight accommodation. The Court relied on Mathis v. United States, 2016 SCC OnLine US SC 80 and Taylor v. United States, 1990 SCC OnLine US SC 81 to construe the term. The judgment of the Sixth Court of Appeals was reversed and the judgment of the Eighth Circuit Court of Appeals was vacated.[United States v. Victor J. Stitt, 2018 SCC OnLine US SC 86, decided on 10-12-2018]