TAX OMBUDSMAN

Published By The Daily Star on November 24, 2012 (Link Here)

This week Your Advocate is Barrister Omar Khan Joy, Advocate, Supreme Court of Bangladesh. He is the head of the chambers of a renowned law firm, namely, ‘Legal Counsel’, which has expertise mainly in commercial law, corporate law, family law, employment and labor law, land law, banking law, constitutional law, criminal law, IPR and in conducting litigations before courts of different hierarchies. Our civil and criminal law experts from reputed law chambers will provide the legal summary advice.

Query
I am living in Dhaka. Few days back, in my neighborhood, an untoward incident took place. One tenant’s younger daughter commits suicide following brawl with House Owner’s Wife. House owner’s wife, daughter and son took part in beating of the tenant’s daughter. Victim’s mother downed the hanging body from the ceiling, breaking the door. Police visited the spot and collected the evidence and witness’s voice regarding the matter. Police also arrested the three member of house owner’s family i.e. wife, daughter and son and sent them to jail. All the member of the house owner now free on bail.

However, problem arises on the other issue. Now, tenant is not willing to leave the house until the matter is not quashed in the court or he is not compensated. Though the owner noticed the tenant to leave the house before the incidence took place.

My query is: Is it legal for the tenant to stay in the house? And what type of legal steps will be adopted by house owner to evict them from the house? Moreover, what legal steps should tenant do to seek justice or compensation in the above mentioned case?

Pijush Mukharee,
Pallabi, Dhaka-1216

Response
Thank you very much for your queries. I have fully understood the situations and your queries and shall answer these in turn.

Firstly, regarding the tenancy issue, I understand that the tenant in question does not want to leave unless the matter is solved, i.e. the case is decided, and you are desirous to know whether it is legal for the tenant to stay in the house. To begin with, there is no connection with a criminal case and the tenancy. If a tenant files a criminal case on a different matter against the landowner, this does not anyhow affect their tenancy relationship, and accordingly, the tenant can continue to live in the property, provided a valid tenancy agreement exists. I believe that the tenant is afraid of leaving the house in the apprehension that if he leaves, the criminal case will be weakened and the evidence will be damaged. However, unless the court instructs that the tenant cannot be moved till the disposal of the case, such apprehension will not give him any right to stay in the house. I really wonder whether the court will grant such an unusual order. Furthermore, a murder case is not a case that can be withdrawn by amicable settlement between the parties (i.e. the complainant and the accused) and hence there is no question of receiving any compensation for the alleged murder from a legal point of view. Consequently, the tenant cannot lawfully demand that he will not leave the house till he has been compensated for the alleged murder.

Much depends on the tenancy agreement that may be existing between the tenant and the landowner. Considering a proper tenancy agreement exists between the parties, if the tenancy period has not expired, then it is very much legal to continue living in this house. However, if the tenancy period has expired, then it will be illegal to reside in that house, and the landowner, accordingly, acquires the right to take legal steps to remove the tenant.

Moreover, if the agreement has been otherwise terminated for any reason, then the tenant has lost the licence to live in that house, giving the landowner another basis for taking legal steps to remove him. If the agreement provides for giving of notice before terminating the agreement prior to the expiry of the tenancy period, then either or one party (as the agreement may prescribe) shall have to serve notice to the other party. When the notice period expires, the tenant has to leave the property since the agreement, and as such the tenancy, cease to exist. Therefore, if the tenant in question has been served with a notice, which I understand is done in the instant scenario, and the notice period has expired, then the tenants should leave the property.

It all comes down to what the agreement contains; if the agreement provides for the assignment of reason for terminating the agreement whatsoever, then the parties should give reasons in their termination notice, as to why they want to terminate it. If the landowner tries to evict the tenant without maintaining the terms and conditions of the agreement (for e.g. terminating without assigning reason, or terminating without giving notice, where the agreement necessitates giving of notice and reasons therein) then such an eviction will be illegal.

Considering, on the other hand, that a written tenancy agreement does not exist, even then the landowner must give reasonable notice and time to have the property emptied. Reasonable notice period shall vary largely depending on the facts and circumstances of the parties.

As for the kinds of the legal steps that the landowner may adopt, provided he has discharged his duties and responsibilities under the tenancy agreement and the same has been terminated according to its terms and conditions, he may send the tenant another notice asking the tenant to leave the property. However, in view of the landowner’s behavioural history, I doubt whether they will be send such a notice. They could send, at their best, a legal notice, through a lawyer.

Moreover, there are laws on eviction of tenants. Section 18 of the Premises Rent Control Act, 1991 (hereinafter referred to as the ‘Act’), which otherwise is a protection, against eviction by landowner, for the tenant who pays rent to the full extent allowable by this act and performs the conditions of the tenancy, gives the landowner grounds on which he can file a case to evict the tenant. According to Section 18 of the Act, in essence, the circumstances under which the landowner can do so are as follows:

1. the tenant fails to keep, and on the termination of the lease, fails to restore, the property in as good condition as it was at the time when he was put in possession, subject only to reasonable wear and tear or irresistible force, and fails to allow the lessor and his agents, at all reasonable times during the term, to enter upon the property and inspect the condition thereof, and the tenant fails to make a defect, caused by the tenant or it agents, good within three months after notice of defect has been given or left; or

2. if the tenant fails to pay the rent reserved by the lease and to perform the agreement according to its terms and conditions; or

3. tenant, without the lessor’s consent, erects on the property any permanent structure, except for agricultural purposes; or

4. in the absence of any contract to the contrary, the tenant has, without the consent of the landlord in writing, sublet the premises in whole or in part; or

5. the tenant has been guilty of any such conduct as is a nuisance or an annoyance to occupiers of adjoining or neighbouring premises; or

6. the tenant has been using the premises or part thereof or allowing the premises or part thereof to be used for economic purposes; or

7. the premises are bona fide required by the landlord either for purposes of building or rebuilding the premises or for his own occupation or for the occupation of any person for whose benefit the premises are held, or where the landlord can show any cause which may be deemed satisfactory by the Court.

However, Section 18(2) of the
Act provides that the fact that the period of the lease has expired, or that the interest of the landlord has been transferred shall not of itself be deemed to be a satisfactory cause which the landlord can show to the Court, if the tenant is ready and willing to pay rent to the full extent allowable by this Act.

For detailed query contact: omar@legalcounselbd.com.