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Deepak Salotri v. Anwar Shah - WRIT - A No. 34611 of 2007  RD-AH 13171 (31 July 2007)
Court no. 7
Civil Misc. Writ Petition No. 34611 of 2007
Deepak Salotri versus Anwar Shah
Hon'ble Rakesh Tiwari,J.
Heard counsel for the parties and perused the record.
This writ petition has been filed for quashing the order dated 8.2.2007 passed by XII Additional District Judge, Agra in JSCC Revision No. 34 of 2004 whereby he confirmed the order dated 21.4.2004 passed by Judge Small Causes Court, Agra in JSCC suit no. 13 of 2003 decreeing the suit in favour of the respondent landlord.
The respondent filed JSCC suit no. 13 of 2003 before the Judge Small Causes Court, Agra against the petitioner for recovery of water tax for the period of three years amounting to Rs. 360/-, mesne profits and ejectment from the disputed shop in property no. 8/372 A, Shah Taj Market situate at Bhogalpura Shahganj, Agra alleging that the petitioner is tenant in the premises in question since 22.1.1997 and he has sub let the shop in question to one Sandeep Sharma son of Sri Murari Lal Sharma.
Written statement was filed by the petitioner denying the allegations of sub-letting and payment of water tax included in rent according to the agreement executed by the landlord regarding the tenancy.
The Judge Small Causes Court vide order dated 21.4.2007 decreed the suit holding that water tax as part of rent and is not excluded; and that non- payment of water tax amounts to the default in payment of rent. The relevant portion of the finding of the Judge Small Causes Court is as under:-
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Aggrieved by the aforesaid order dated 21.4.2007 the petitioner filed JSCC Revision no. 34 of 2004 before the Revisional Court which was also dismissed vide order dated 8.2.2007, hence this writ petition.
The counsel for the petitioner submits that the judgment and decree passed by the Courts below decreeing the suit for ejectment of the petitioner for non-payment of water tax treating it to be default in payment of rent is totally misconceived, arbitrary, illegal and bad in law; that the petitioner has initially pleaded that the shop in question is very old and the provisions of U.P. Act No. 13 of 1972 is applicable and as such the impugned judgment and order passed by the Court below holding that the U.P. Act No. 13 of 1972 applicable to the shop in dispute is against the pleading and is perverse and illegal.
In support of his above submission the counsel for the petitioner has placed reliance upon paragraphs 36 and 37 of the judgment in the case of M/s Hotel Kings Vs. Sara Farhan Lukmani, 2007, All.C.J. 294. Paragraphs 36 and 37 of the judgment are as under:-
" 36.Notwithstanding the decisions in the Bombay Municipal Corporation case and Raju Kakara Shetty (supra), the view expressed therein are distinguishable on facts with the facts of these two appeals. Both the said judgments deal with payment of education cess under the Maharashtra Education (Cess) Act, 1962, under which the landlord is liable to pay such cess annually but has the right to recover the amount so paid by him from the tenant in addition to the standard rent as a part of the rent itself. By operation of law education cess has been made a component of the rent payable by the tenant in respect of the tenanted premises. In such a case, the concept of ''permitted increase' would include the cess payable as part of the rent itself. In the instant case, however, the lessee is required to pay the rates and taxes and other outgoings for the demised premises in respect whereof the landlord has been given the right to effect permitted increase equivalent to the amount paid towards rates and taxes. The same does not, in our view, makes such payment a part of the rent though it may be a consideration for the grant of lease.The ''permitted increase' in the instant case serves as a yardstick for the landlord to increase the rents on account of payment of rates and taxes by the landlord.
37. Consequently, even though the lease deed contained a provision for payment of the rates and taxes exclusively by the lessee and it is also stipulated that the lessor will have no liability therefore, the lease will still be governed under Section 12(3)(a) of he Bombay Rent Act as held by the Appellate Bench of the Small Causes Court at Bombay and affirmed by the High Court. The expression " consideration" indicated in Section 105 of the Transfer of Property Act has been used in a generic sense to include the price paid or promised or of money, a share of crops, service or any other thing of value. On the other hand, the lease deed specifies the amount to be paid as rent each month while the rates and taxes and other outgoings are treated to be the separate liability of the lessee, no doubt having regard to the intention of the parties that a building was to be erected by the lessee on the demised land."
The aforesaid case of M/s Hotel Kings (supra) is not applicable to the facts of the present case as the provisions of payment of rent under the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Act, 1986 are different than the provisions of payment of rent under the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 which is applicable in the State of U.P.
The question before the Court in the aforesaid M/s Hotel Kings' case (supra) was whether the "permitted increase" under Section 5(7) of the Bombay Rent Act would be part and parcel of the rent, which the landlord is entitled to receive from the tenant. Relying upon the definition of rent in Bombay Rent Act 1986 read with Section 105 of the Transfer of Property Act as well as the terms and conditions of the lease-deed, the Court held that lease specifies the amount to be paid as rent each month while the rates and taxes and other outgoings are treated to be the separate liability of the lessee. The concept of "permitted increase" would include cess payable as part of the rent itself and in that case the lessee was required to pay the rates and taxes and other outgoings for the demised premsies in respect whereof the landlord has been given the right to effect permitted increase equivalent to the amount paid towards rates and taxes, which in the opinion of the Court did not make such payment as part of rent though might be a consideration of grant of lease.
The case of M/s Hotel Kings (supra) is therefore, clearly distinguishable from the facts of this case as Section 7of U.P. Act No. 13 of 1972 clearly specifies that water tax is a part of rent and the definition of rent in Bombay Rent Act would not be applicable to the State of U.P. which has its own Uttar Pradesh (Regulation of Letting, Rent and Eviction) Act, 1972. Section 7 of the Act is as under:-
" 7. Liability to pay taxes- Subject to any contract in writing to the contrary but notwithstanding anything contained in Section 149 of the Uttar Pradesh Municipalties Act, 1916, the tenant shall be liable to pay to the landlord in addition to and as part of the rent, the following taxes or proportionate part thereof, if any, payable in respect of the building or part under his tenancy, namely;
(a) the water-tax;
(b) twenty-five per cent of every such enhancement in house tax made after the commencement of this Act, or such portion thereof, as is not occasioned on account of the increase in the assessment of the building as a result of the enhancement of rent under the provisions of Section 5;
Provided that nothing this section shall apply in relation to a tenant the rate of rent payable by whom for the time being (excluding any enhancement of rent under provisions of Section 5) does not exceed twenty-five rupees per month."
The Courts below have given concurrent findings that water tax in the instant case is part of rent. This appears to be correct in view of Section 7 of U.P. Act No. 13 of 1972. The petitioner has in paragraph 12 of the writ petition averred that he had initially pleaded that the shop in question is very old and the provisions of U.P.Act No. 13 of 1972 are applicable as such the impugned order and judgment passed by the Court below holding that U.P. Act No. 13 of 1972 is applicable is against the pleadings and is perverse is not correct in view of the own admission in the paragraph that Act is applicable.
The averments made in paragraph 12 above are contrary to averments made in paragraph 14 of the writ petition which are as under:-
" That it would not be out of place to mention here that the petitioner was inducted as tenant on the basis of written agreement executed by the landlord in favour of the petitioner creating tenancy since 22 January, 1997 on certain terms and conditions wherein it was specifically mentioned that U.P. Act No. 13 of 1972 is not applicable and contrary to the finding recorded by the Courts below is unjust, improper, bad in law and unsustainable which is liable to be quashed by this Hon'ble Court."
The reason is that an agreement cannot be against a statute. An agreement is lawful if it is enforceable by law. Two persons cannot agree to any act which is against law as in the instant case against provisions of Section 7 of the Act which provides that the water tax to be part of rent.
For the reasons stated above, the writ petition is dismissed.
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